Marital rape debate needs more nuance

This is my response to Dushyant Arora’s article “Rape And The Law In India”.

He begins with:

“How common is marital rape? One third of men interviewed by International Centre for Women (ICRW) and United Nations Population Fund’s (UNPFA) across seven states in India admitted to having forced a sexual act on their wives.”

Was a similar survey conducted on women? What do they say? Why do these surveys deem it beneath their importance to think of man’s sufferings?

You know what else has been presumed to be sacred, derived from religious belief and existed in a time of severe illiteracy? Sati.

Sati – for sure – wasn’t mandatory per Hindu religious scriptures. In Mahabharata, when King Pandu died, one wife committed Sati (not forced, but volunteered out of guilt of being responsible for his death); while Kunti, the other wife, not only lived on to see her great-grandson but was also accorded the highest respect by people. Wives of Ravana, Duryodhana etc. are not known to have committed Sati.

This was decision taken by the wives themselves and not enforced through state. As late as in 1839 (10 years after Sati Regulation Act was passed by British, Maharaja Ranjit Singh’s wives committed sati upon his death on their own will.

A senior advocate recently wrote that ‘If at any stage in a marriage, the wife seeks to withdraw the presumed consent that accompanies a marriage, it is open to her to live separately.’ If that’s so, the argument presumes that the husband will jump away the moment his wife screams ‘I separate’ as she is being raped.

But this very argument presumes that in any marital dispute, wife’s testimony should automatically overrule husband’s. In these instances of “he said, she said” (which is always the case with marital rape), the author presumes that man’s testimony shouldn’t matter anyway, because it’s only the wife who should be heard.

Troublingly, the statement assumes an equality between genders.

What’s more troubling is your inability to see women as capable of being aggressors.

Is separation always possible for women who face abuse? We live in a patriarchal society where prejudice, discrimination, lack of access to education and work, makes many women financially dependent on their husbands. A woman living separately from her husband is stigmatised. She is often urged to ‘adjust’ or ‘save her family’ or ‘settle matters’ – even by her own family.

The truth is other way round. In reality, men are the ones who find it impossible to separate from abusive women. We live in a society where asking wife to adjust reasonably can invite threats of false cases. A wife can – with effectively zero evidence – throw husband, parents, siblings (and anyone she names) into jail just on the strength of her statement alone (498a).

This isn’t women empowerment, this is men deprotection – name any other criminal case where a man can be put into jail without even prima-facie evidence on a mere complaint. If the ‘counseling’ centres at Women’s Police Station are any indication, it’s the man who’s asked to surrender to wife’s demands to avoid being charged with false cases and rather “settle matters” (translates to huge amount of money).

In many cases it is the man who has no option but to reconcile with an abusive wife, because she threatens to send his entire family behind bars if he dares to make any effort to separate.

If abused women found it so easy to separate, then we might as well do away with laws criminalising domestic violence too—tell women to walk out instead of putting up with it. And even if they are able to walk away, that first instance of violence- which necessitates the exit from a marital home – is still a cognisable offence and should be punished

Does the author realize that Indian DV Act doesn’t even recognize man as a victim? A man at the receiving end of domestic violence has absolutely no where to go, no helpful legal provisions, and instead mocked upon. The female-initiated domestic abuse is as severe and has come to light even in Western nations.

Just two articles that prove the issue is more nuanced and its time women-only-victim, men-only-aggressor stereotype must go:

It is easier for women to separate – she can arm-twist husband into signing divorce papers and give her an amount she demands on the threat of 498a. No sane husband would refuse divorce or the demanded money, as certain disaster awaits him in the form of false cases otherwise; he will lose his job and run behind courts for years without respite and the courts anyhow will pass orders for interim maintenance.

If however it’s the husband who desires separation, it’s a the different story.

 Every. Law. Is. Susceptible. To. Abuse. False allegations are possible within a marriage and without. That thankfully has not led us to decriminalise an act of rape outside of marriage. Secondly, and I cannot emphasise this enough: it is extremely difficult for a woman to prove absence of consent especially in a bond of matrimony. Thirdly, for context, the crisis our society faces is one of under- or un-reported sexual violence, categorically not an epidemic of false cases.

Give us an example of any other law in which a mere complaint can throw the accused behind bars without prima facie evidence? Unless influence or bribery is involved, under normal circumstances no person be put in jail with bail denied.

Isn’t it even more difficult for a man to prove the presence of consent, especially in a private bedroom? What the author suggests is to give blanket power to women to ruin their husbands, while depriving husband of his basic right of due process.

Tell us of one instance where you would like to believe that the husband was truly innocent, once he’s accused? Given author’s line of logic, there’s no possibility of such a scenario at all – once accused the husband is guilty, due process be damned.

All that differentiates an allegation of rape within marriage from one beyond it is the unstated presumption that marriage entails perpetual consent on the part of the wife, a presumption one would like to believe that no law would support in the 21st century.

But the presumption that marriage entails perpetual consent on the part of husband to maintain her not only exists, but is legally-enforceable. Once married, the wife has to be maintained, even if the couple separates. If marriage doesn’t entail perpetual consent for sex, why should it include perpetual consent to maintenance?

Here’s the reality which author tries so hard to obfuscate:  a wife who longer wishes to stick to her marital vows, can readily misuse laws to get what she wants (divorce and money). But a man is perpetually a bonded labour who must be in wife’s good books – because once she decides to harm him, law far from protecting him, in fact enables her to torture him more viciously.

Once accused, a man’s innocence is of no consequence, he’ll be treated as guilty and punished accordingly.