MARITAL RAPE CANNOT HIDE BEHIND HINDU TRADITION: LEARN FROM NEPAL

Minister of state for home, Haribhai P Chaudhary, says in a written answer in the Rajya Sabha: “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors e.g. level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc.”

What is he saying?  That we are a country of Hindus, we follow Hindu traditions, even in marriage, under Hindu tradition, marriage solemnizes a relationship between a man and a woman, it bestows conjugal rights, these rights are consensual, so, sex between husband and wife is deemed consensual, even if it is not (!!), therefore, there is nothing like marital rape as per Hindu tradition, therefore, how can marital rape be a crime when it does not exist?

No point blaming Chaudhary.  Most Indian males are trapped in a male chauvinist mindset. In any case, in this instance, he was talking on behalf of all the MPs who were members of the committee on home affairs looking into the marital rape question.

The government’s reply to the question takes me back to the dark days of Great Britain, all the way back to the early 18th century when in 1736 Chief Justice Hale, just like our Chaudhary, quoted Anglo-Saxon traditions of his time to say that the husband cannot be guilty of marital rape on the grounds that marriage itself counts as consent for as long as the couple are together.

To quote him in his own words: "But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract."

It took that “progressive” nation exactly 155 years to abolish the marital rape exemption. Going by that time scale, the petty colonial stooges that we are, it may take us ages to do that.

But let me quote a striking example from our neighbour, Nepal.

Our politicians gloat over playing Big Brother to the neighbour. They better learn how Nepal dealt with the issue of marital rape.

Society in Nepal is controlled by their civil code, called the Muluki Ain. It was first commissioned in 1854 and was rooted in traditional Hindu Law and codified social practices of several centuries. Marital rape had an exemption in this code, just like in India. But in 2006, it was amended and marital rape was criminalized.

The Supreme Court of Nepal while ruling a petition to abolish the marital rape exemption went about abolishing it. In its 12-page ruling, the apex court summed up what the government’s plea against the abolition was:

“Whereas, the Ministry of Law, Justice and Parliamentary Affairs stated, in its written reply, that the said provision of the current law has been enacted because it is not in conformity with the Hindu religion, traditions and values that a husband rapes his own wife exercising threats, fear, pressures and duress, unlike what has been contended by the writ-petitioner….

“Whereas, the Cabinet Secretariat has, in its written reply, contended that No. 1 of the Chapter on Rape, the Country Code, has criminalized the act of having sexual intercourse with force with any women and has afforded protection to women by punishing any third person who commits the offence of rape as defined or deemed by law with any woman other than his wife. Since it is against the Hindu religion, traditions and values that a husband rapes his wife by exercising threat, fear, pressure and force, unlike what has been contended by the petitioner, the current law contains that provision.”

It also quoted the Deputy Attorney General representing the government as giving reasons against abolition: “….It is not in conformity with Hindu religion and traditions to say that consent is required to have sexual relations with one's own wife. While changing a legal provision prevailing since time immemorial, the repercussions it causes on the society and its execution have to be taken into consideration. (italics mine). The legislature enacts and reviews laws as per the need of the time and societal opinions. But a court does not make law in the same manner as legislature does. Unlike what has been claimed by the petitioner, No. 1 of the Chapter on Rape does not contain gender discriminatory provision, rather it merely defines the offences of rape. Thus, as the said provision is not inconsistent with the Constitution, the writ petition is liable to be quashed.”

Ruling in favour of abolition, the Supreme Court argued:

1.Rape violates all rights of a woman, which are related to living with dignity.

2. Forcible sexual intercourse by exercising force is inhuman, uncivilized and animal-like act.

3. As long as women remain as human being, they are also entitled to all rights that a human being is entitled for being a human.

4. There is no distinction in exercise of these rights before and after the marriage of women.

5 To say that the husband can rape his wife after the marriage is to deny independent existence, right to live with self-respect

and right to self-determination.

7. the aim of the law is to punish all culprits instead of traditional practice of discrimination. Religious beliefs and traditions did not restrict polygamy, but now the law has made it punishable.

8. It will yield discriminatory result, if we interpret that an act committed to any other woman is an offence and is not an offence, if the same

act is committed to one's own wife. There is no justification in differentiating between the women who are wives and other women.

The court finally ruled:

“No law can be interpreted against provisions of the Constitution and treaties and international instruments to which Nepal is a party. Therefore, to exempt an offence of rape committed to one's wife by the husband is against recognized principles of justice. An offence is deemed to be committed because it is committed and not because there is difference in the status or position of the person committing that offence. There

may be difference in the degree of punishment but there would be no immunity from punishment. The law itself has regarded consent as a basis of marital relationship and marriage cannot be solemnized in absence of the consent. In similar ways, mutual consent is compulsorily required to have sexual intercourse between husband and wife after the marriage. Sexual intercourse with use of force and without consent is regarded

as the offence of rape.”

“The learned government advocate appearing on behalf of the respondents pleaded that it is not in conformity with Hindu religion and tradition to say that consent is required to have sexual intercourse with one's own wife. Hindu religion and its literature stress on purity, cleanliness and behavior of good faith in conjugal life, it can not be said that Hindu religion and traditions exempts the heinous act of rape to wife. Sexual

intercourse in conjugal life is a normal course of behavior, which must be based on consent. No religion may ever take it as lawful because the aim of a good religion is not to hate or cause loss to any one. Thus, the pleading of the learned government attorney appearing on behalf of the respondent can not be accepted."