This article was first published in slightly edited form as cover story in The Week, 24th September, 2017
The world over, sexual violence and abuse in marriage is a common phenomenon. Those who say that acknowledging the reality of marital rape is against Indian culture neither know India nor are they cultured. A cultured society is one that faces problems head on, instead of pretending they don’t exist.
Much before western feminists dared to talk of rape in marriage, way back in early 20th century, Mahatma Gandhi's message to the women was: 'If you want to play your part in the world's affairs, you must revolt against any pretension on the part of man that woman in born to be his plaything" (Gandhiji in Ceylon, cited in "To the Women" p. 195, Gandhi Series Vol. II (ed) A Hingorani, Karachi, 2nd ed. 1943)).
Gandhi insisted on the inviolability of the personal dignity and autonomy of women. She had the right to say 'no' even to her husband. "I want woman to learn the primary right of resistance. ..She thinks now that she has not got it." He goes on to add that every woman has the right to her own body with she does not surrender for a lifetime with marriage.(Harijan, January 25, 1936, CW Vol LXII, p.158)
The zealous campaigners demanding a new law to cover marital rape have created a misleading impression that Indian laws provide no recourse to women who suffer sexual abuse and violence at the hands of their husbands. However, it is plain common sense that before demanding amendments to existing laws or enactment of new laws, we must carry out thorough audit of existing laws on the subject.
The world over, sexual violence and abuse in marriage is a common phenomenon. Those who say that acknowledging the reality of marital rape is against Indian culture neither know India nor are they cultured. A cultured society is one that faces problems head on, instead of pretending they don’t exist.
Much before western feminists dared to talk of rape in marriage, way back in early 20th century, Mahatma Gandhi's message to the women was: 'If you want to play your part in the world's affairs, you must revolt against any pretension on the part of man that woman in born to be his plaything" (Gandhiji in Ceylon, cited in "To the Women" p. 195, Gandhi Series Vol. II (ed) A Hingorani, Karachi, 2nd ed. 1943)).
Gandhi insisted on the inviolability of the personal dignity and autonomy of women. She had the right to say 'no' even to her husband. "I want woman to learn the primary right of resistance. ..She thinks now that she has not got it." He goes on to add that every woman has the right to her own body with she does not surrender for a lifetime with marriage.(Harijan, January 25, 1936, CW Vol LXII, p.158)
The zealous campaigners demanding a new law to cover marital rape have created a misleading impression that Indian laws provide no recourse to women who suffer sexual abuse and violence at the hands of their husbands. However, it is plain common sense that before demanding amendments to existing laws or enactment of new laws, we must carry out thorough audit of existing laws on the subject.
Domestic
Violence Act Covers Sexual Violence and More: The truth is that the Domestic Violence Act of 2005 along with S.498A of the
Indian Penal Code have more than enough provisions to provide relief to a
victim of spousal violence and abuse including sexual or emotional violence or economic
deprivation. True, the term “rape” is
not mentioned in either of these laws. But
isn’t sexual violence the same as “rape”? Why this bizarre obsession with
getting an antiquarian term included in marriage laws? Both these laws take a very broad sweep in
defining domestic violence as evident below:
“Any act, omission or commission or conduct
of the respondent shall constitute domestic violence in case it—
(a)
Harms or injures or endangers the
health, safety, life, limb or well-being, whether mental or physical, of the
aggrieved person or tends to do so and includes causing physical abuse, sexual
abuse, verbal and emotional abuse and economic abuse; or
(b)
Harasses, harms, injures or endangers
the aggrieved person with a view to coerce her or any other person related to
her to meet any unlawful demand for any dowry or other property or valuable
security; or
(c)
Has the effect of threatening the aggrieved
person or any person related to her by any conduct mentioned in clause (a) or
clause (b); or
(d)
Otherwise injures or causes harm,
whether physical or mental, to the aggrieved person.”
When the DVA defines “physical abuse” as acts
that “cause bodily pain, harm, danger to life, limb or health or impair the
health or development of the aggrieved person and includes assault, criminal
intimidation and criminal force,” does it not adequately cover what can be
termed ‘rape’?
This is not all. DVA goes to specifically define “sexual abuse”
as “any conduct of a sexual nature that abuses, humiliates degrades or
otherwise violates the dignity of woman.”
It further includes “verbal and emotional abuse, insults, ridicule,
humiliation, name calling” etc. DVA also
provides recourse against “economic abuse” which is defined as “deprivation of
economic or financial resources to the wife but not limited to household
necessities for the aggrieved wife and her children”.
There is lot more covered under DVA but for
the purpose of this article, I limit myself to these clauses. Can any reasonable person deny that not just
marital rape but even lesser offences such as taunts or sexist jokes can be
used as grounds for demanding relief under this Act? The law is already over the top in putting
verbal abuse, sexist jokes at par with beating a wife. And yet, rabid feminists (both male and
female) want more sadistic provisions in favor of women.
Wide Ranging Reliefs Already Available: DVA also
provides for appointment of Protection Officers and Service Providers in every
district. Neighbors, or friends of the victim as well as her relatives can seek
intervention of these officers who are duty-bound to file a police report on
behalf of victims, provide shelter homes, medical facilities and legal aid for
the victims and ensure that protection orders issued against the respondents
are carried out. Most important of all,
the law enables the women to seek orders against her eviction from the marital
home so that her right to residence remains secure. At the same time, the woman can seek orders
barring or restricting the accused from entering his own house, even if he has
no other residence. In other words DVA
allows a wife to render a man homeless and still be obliged to provide
maintenance for wife and children plus monetary relief to the woman for loss of
earnings, medical costs and any other expenses incurred by her on account of
harm caused to her due to marital violence.
The law also gives her prior right to custody of children.
It is noteworthy that these remedies are available
not just to legally wedded wives but also for live-in partners – no matter how
short or long be the duration of the live-in relationship. This is one of the most harmful clauses
because it puts legally wedded wives who may have given their whole life to a
marriage at par with women having short-term flings. Yes, there are problems in
honest implementation of these provisions.
But why are rape obsessed feminists not fighting for that instead of
demanding yet another impractical law?
Under Domestic Violence Act, far reaching
civil remedies were made available to wives on the assumption that by sending
their husbands to jail, their economic problems tend to get aggravated if they
do not have an independent source of income or a secure home.
Provision Under S.498A: However, the woman can simultaneously use section 498A of the IPC,
which also provides for effective criminal remedies against her husband for
violence and cruelty. This is what 498A
says:
“Whoever,
being the husband or the relative of the husband of a woman, subjects such
woman to cruelty shall be punished with imprisonment for a term which may
extend to three years and shall also be liable to fine.”
Cruelty is defined in an overarching manner
as:
“…any willful conduct which is of
such a nature as is likely to drive the woman to commit suicide or to cause
grave injury or danger to life, limb or health (whether mental or physical) or
the woman; or harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful demand for any
property or valuable security or is on account of failure by her or any person
related to her to meet such demand.”
It is plain common sense that a husband
coercing his wife into sex against her wishes, especially if it involves use of
violence in sex, amounts to physical and emotional cruelty and therefore, covered
by S. 498A. But the hunger for punitive measures of feminist zealots is not
satisfied with these two laws. They argue
that DVA only provides for “civil remedies” while the maximum punishment under
S.498A is just three years whereas under the regular rape law it can’t be less
than seven years. Hence their insistence on a new law that treats rape in
marriage as a specific crime at par with rapes outside marriage.
The PIL filed in the Delhi High Court by NGO
RIT Foundation petition has gone so far as to argue that marital rape as
separate from general rape amounts to discriminating between two categories of
women – namely those raped by husbands and those raped by men who are not their
husbands. Therefore it violates Article
14 of the Constitution, which promises equality before law. If these revenge hungry feminists were
serious about equality, they would not object to making anti-rape and domestic
violence laws gender neutral. But they
go ballistic at the mere mention of gender parity in laws.
The RIT
petition also argues that the law as it stands today amounts to a
state-sanctioned license granted to the husband to violate the sexual autonomy
of his lawfully wedded wife and is therefore, a violation of the Right to
Privacy guaranteed to the wife under Article 21 of the Constitution. Needless to say, in their partisan worldview
men do not deserve the right to privacy, or the right to fair trial through due
process.
Offence as the
Best Form of Defense for Unleashing “Legal Terrorism”: The timing of their frenzied demand for enacting a new law to
cover marital rape is revealing. It
comes at a point when various high courts in India as well as the Supreme Court
have passed several judgments expressing serious concern at the growing and
widespread misuse of domestic violence laws, especially Section 498A as well as
the anti-rape law for the purpose of blackmail, extortion and revenge – that
too using false charges.
Way back in
2003, the Malimath Committee report made vital recommendations regarding rights
of the accused and preventive measures required to prevent misuse of criminal
laws. Law Commission reports (237 & 241) have also recommended amendments
in these laws.
In Sushil Kumar Sharma Vs Union
of India (141 of 2005) Supreme Court cautioned that “We come across a large number of such
complaints which are not even bona fide and are filed with oblique motive…the role of the investigating agencies and the courts
is that of watch dog and not of a bloodhound. It should be their effort to see
that in innocent person is not made to suffer on account of unfounded, baseless
and malicious allegations.” The court added that, “by misuse of the
provision, a new legal terrorism can be unleashed”. In 2008, Justice Gambhir
also gave detailed guidelines for procedures before arrest. In Arnesh Kumar Vs State of Bihar judgment in
2014, Supreme Court issued directions to all police
authorities/ Magistrates for well defined due process to be followed before
arrest/authorizing detention and ruled that no automatic arrests/detentions to be made by the
Police/Magistrates even in non-bailable and cognizable offences; conditions
precedent to making arrest/authorizing detention under the Code of Criminal
Procedure, 1973 must be satisfied first.” As a result of these
restraints the arrests under 498A came
down from 220000 to 186000 in 2015.
But misuse of the law continued, especially
where the accused were not well informed because it gave the corrupt police,
unethical lawyers and judges ample opportunities to fleece money. Therefore, as
recently as 27 July 2017, the Supreme Court again issued clear orders that the
police should not go arrest the accused family without due process. The Apex Court also laid down yet another
list of legal steps that should precede the arrest.
In the last two decades a groundswell of mass
pressure has built up demanding a thorough review of the several draconian
amendments and laws enacted for the ostensible purpose of strengthening women’s
rights because in reality they have caused untold suffering and havoc against
countless innocent persons and families. At the same time, many genuine victims of
abuse and violence are unable to get justice. Just as the higher judiciary was
being forced to take note of their growing abuse and put in place remedial
measures, rabid feminists have come up with a new weapon to wreak
vengeance. It’s a typical case of
offence being the best form of defence.
The reason women-centric laws have come to be
feared as “legal terrorism” is that certain excesses are common to them all
which render these laws easy-to-abuse.
1)
A mere allegation by a woman that she
is the victim of marital abuse, cruelty or dowry demands have been enough to
send the accused persons, including teenage sisters of the husband or those living
in another city/country plus aged parents, aunts, uncles, cousins of the
accused man behind bars. Bail is not
easy in these cases. Families spend
years and go bankrupt defending themselves even when the charges are blatantly
false. The stigma involved with jail
often means dismissal from jobs and destroys whole families.
2)
Unlike in all other cases of crimes--including
serious ones like murder, dacoity, maiming, financial fraud-- the accused is assumed
innocent till proven guilty. However, in
all women centric laws, this principle has been turned on its head. The accused are assumed guilty till they
manage to prove their innocence beyond doubt through lengthy judicial trials.
3)
The principle of due process, which
is essential to fair trial, has also been done away with because the accused have
to suffer the ignominy and trauma of jail even before the trial has begun.
4)
The sole testimony of the woman is
considered enough to indict the accused.
5)
The definition of domestic violence has
been widened enough to include even “verbal abuse” and “emotional/mental
torture”.
A law which puts verbal taunts at par with
physical violence is both unsound and irrational because it is easy to make
allegations but impossible for the accused to prove that he/she did not subject
the person to taunts or emotional abuse.
The threat of undergoing jail even before the commencement of the trial
makes husbands and their families’ easy targets of blackmail.
Widespread Misuse of Existing Rape
Law: Likewise
the misuse of anti rape law following certain amendments in 2013 which
introduced some draconian provisions that enable women acting with malicious
intent to implicate even innocents with ease. Notice how wide and loose is the
definition of rape: “A man is said to commit “rape” if he
a)
Penetrates his penis to any extent
into the vagina, mouth, urethra or anus of a woman or makes her to do so with
him or any other person; or
b)
Inserts, to any extent, any object or
a part of the body, not being the penis, into the vagina, the urethra or anus
of a woman or makes her to do so with him or any other persons; or
c)
Manipulates any part of the body of a
woman so as to cause penetration into the vagina, urethra, anus or any part of
body of such woman…
d)
Applies his mouth to the vagina,
anus, urethra of a woman or makes her to do so with him or any other person…”
against her will, without her consent, with her consent, when her consent has
been obtained by putting her or any other person in whom she is interested, in
fear of death or hurt… or when her consent has been obtained while she was
intoxicated or when she is unable to understand the nature and consequences of
that of which she gives consent.
The law further clarifies that:
“Consent means an unequivocal
voluntary agreement when the woman by words, gestures or any form of verbal or
non-verbal communication, communicates willingness to participate in the
specific sexual act. Furthermore, “a
woman who does not physically resist to the act of penetration shall not by the
reason only of that fact, be regarded as consenting to the sexual activity.”
Thus even in
case of adult sex, the term ‘consent’ has been given a very irresponsible and
easy-to-abuse meaning in S.375 making it almost impossible for a man to defend
oneself against the charge of rape with the aid of circumstantial evidence. A
woman doesn’t even need to say or prove that she resisted the alleged “rape’.
It’s enough if she post facto goes
and tells the police that a particular sex act was against her wishes.
As per the pre 2013 anti rape law the judge
could exercise his discretion regarding the quantum of punishment depending on
the seriousness of the act of aggression. But the 2013 amendments prescribe a
minimum of 7 years jail going up to life imprisonment. The discretion of the court to award less than 7 years in any
situation whatsoever-- even if there is a “good and adequate cause”--has been
taken away by repealing the previously existing provisos to Sections 376(1) and
(2). When viewed along with the fact
that under the present law, even the uncorroborated testimony of the
Prosecutrix without any medical, independent oral or documentary evidence is
sufficient to convict a person charged with rape, the amendments can justly be
called draconian. The prosecutrix is not expected to show any evidence, such as
bodily bruises or injuries, that she resisted the sexual act. A mere statement that she did not “consent”
to sex is enough to get the main locked up even before the start of trial.
In the wake
of these amendments brought about by the 2013 Amendments in sections 375 and
376, IPC, the following questions of law arise:
¨
Is it reasonable, fair, just or rational to classify as ‘rape’, acts such
as touching a woman’s private parts or
subjecting her to intimate embrace or body contact or a deep kiss that are
incapable of medical corroboration, when the sole testimony of the Prosecutrix
is sufficient to convict?
¨
Granting that such acts are certainly offensive if forced upon a woman,
should they all be equated with rape and punished with equal severity, and does
such an equivalence in penal consequences not violate the principle of
proportionality in punishment and amounts to a violation of Article 14 apart
from belittling the horror of real rapes?
¨
The loosely worded definitions provide an easy handle for consensual
acts being given the taint of ‘rape’ ex
post facto, by persons actuated by malice, as many reported cases show. For
instance, such provisions allow a woman to allege rape on grounds that she was
drunk at the time and therefore was unable to give informed consent, even
though the act was consensual when it happened. Such situations are common when
women go to late night bars and parties hosted by unknown people in luxury
resorts where liquor and drugs flow freely or in private addas of aiyyashi euphemistically named “farm houses”.
¨
The words “where she is unable to communicate consent” put in a penal
statute, are (S.375) too vague and liable to abuse in the absence of any
specification as to the nature of inability to express consent. Is the man expected to first video record her
consent before going to bed with her?
All these
amendments have made it easy to register flimsy rape complaints, without the
requirement of objective substantiation of the charge. As soon as an accusation
is made, there is an arrest, and aside from the deprivation of liberty, the
filing of such a case, leads to the irrevocable loss of reputation not just for
the targeted individual but also for his entire family who are devastated by
the ignominy of the heinous charge and the trauma of being treated as social
outcastes. The media trial that
accompanies rape complaints, especially in cases of high profile public
figures, often influences the judicial process whereby even getting bail
becomes a herculean challenge.
Evidence of Misuse by DCW & The Hindu: Statistics
compiled by government agencies indicate that immediately following the
amendments, there has been a disturbing spurt in the filing of rape complaints
which have ultimately been found by courts to be false. For instance, the Delhi Commission of Women (DCW) has come out with startling
statistics showing that between April 2013 and July 2014, 53.2% of the 2753
rape cases filed in the capital were found to be 'false'. Only 1,287 cases were found to be true and
the remaining 1,464 cases were malafide.
Between, January 2014 and July 2014, the number of false rape cases
filed was 900. In many cases, investigation revealed that revenge was the most
common reason for filing a false complaint.
In 2013 there were a total of 1,559 cases of rape registered in Delhi,
where the acquittal rate was 78%. This was a 22% jump from the earlier 46% of
acquittal in 2012, when there were a total of 680 cases filed.
The Hindu newspaper also conducted a detailed
survey in Delhi, which indicated that that
one-fifth of rape cases were ultimately wound up because the complainant either
did not appear or withdrew her charges, while another 25% had to do with the
“breach of promise to marry”. It further revealed that a total of 583
cases were decided in Delhi in 2013. Out of the 460 cases which were fully
argued before the Sessions Courts, nearly 30% involved elopement of the boy and
girl, followed commonly by a complaint of abduction and rape by the girl’s
family. In 67 of 174
cases of alleged elopement the girl initially admitted (either in the FIR,
medical examination or to the magistrate) that she eloped of her own volition,
but subsequently she turned against the accused and got him booked for rape.
The over imaginative definition of “rape” to
include acts which defy corroboration, have effectively reduced the evidentiary
requirements to establish the offence.
With the factum of consent resting entirely on the statement of the
prosecutrix, acquittal becomes almost impossible in law if the prosecutrix
sticks to her story even though it may be false.
It is noteworthy that under the IPC, except
for full-fledged murder under Section 302 IPC and the actual act of waging war
against the State, few other offences are punishable with a statutory minimum
term. Even in the case of culpable
homicide under Section 304 IPC, only an upper limit is prescribed. The same is true for offences against the state,
such as Sections 121A and 124A IPC. Out of around 300 offences only about 25
have mandatory minimums sentences. A mandatory minimum extending to seven or
more years is a recent (mainly post-2013) phenomenon, except for robbery with prior
preparation or attempt to cause death or “dowry death’ under S.304 B IPC.
Well-known categories of frivolous complaints:
a)
Punishing a lover or live-in partner
for refusing to get married: Sadly, the
police have not hesitated in registering rape cases on the basis of bizarre
complaints whereby the concerned woman has termed the entire period of a live
in relationship or years of voluntary intimacy as a case of repeated rapes just
because the man refused to marry the lover.
This when most such women don’t deny that the sexual/ live-in
relationship was voluntary and not a forced affair. The very premise of a live in relationship is
that either of the two partners can walk out of the relationship if they feel
it is no more viable. To say that a man
is legally obliged to marry a woman he has had sex with and failure to do so
will mean a minimum prison term of 7 years is to trample upon principle of equality. Are we willing to accept that women who
refuse to marry their lovers or want to put an end to a live-in relationship
should be sent to jail?
b)
Punishing a man for refusing to give
a job or promotion or refusal to enter into a relationship. Such cases have
unfortunately become very common. One of the most striking examples of such
abuse of rape law was the case filed against famous film director, Madhur
Bhandarkar by an aspiring actress, who alleged that Bhandarkar had “raped her
16 times between 1999 and 2004 on the pretext of casting her in his films.”
This case was quashed by the Supreme Court nine years later on 5th
November 2012 noting that the lady did not want to pursue the case against
Bhandarkar. Also that the Mumbai police
had earlier given a clean chit to the film director. This is not to comment on the merits or
demerits Bhandarkar’s claim that he was an innocent victim of blackmail. The
woman’s open admission that she repeatedly agreed to have sex with him, as a
quid-pro-quo for a film role is, however, damning. The projection of such women as rape victims
causing enormous harm to reputations all around and is simply not what is
contemplated by the objectives of equality, women’s security or justice. This
is not to deny the prevalence of sexual exploitation of women with the lure of
attractive job offers, job promotions or modeling and acting assignments. But such unsavory deals, when entered into
voluntarily, should not come under the purview of anti-rape law.
Voluntary elopement by teenagers being registered as rape and
abduction charges: As pointed in the data provided by
Delhi Commission for Women, a large number of rape cases pertain to young women
eloping with their lovers or getting married to men disapproved of by their
parents on account of difference in caste, religion or social status. Even
though the act of elopement is voluntary, the parents of young girls invariably
file abduction and rape cases against the young man.
The easy sustainability of a rape
charge under the new law has turned the threat of a rape complaint into a blackmail
weapon: I can say on the basis of personal
knowledge that unscrupulous policemen are running well-organized extortion
rackets using male and female sex workers for
blackmailing respectable citizens with the threat of trumped up cases of rape
or sexual assault. In cases where sex workers either trap an unwitting person
or voluntarily engage in commercial sex with him, the charge can even be
medically corroborated through DNA examination of the semen. This is not to condone engaging in
prostitution by men but merely to point out the unfairness of taking the word of
the prosecutrix as gospel truth added to the provision that the past sexual
history of a woman including the fact of her being a sex worker cannot be used
as evidence against her. While there is no denying that even commercial sex
providers have a right to say ‘No’ when they so desire, and their ‘No’ should
be taken seriously, it is nevertheless relevant to show the many dangers of
rendering rape prosecutions easy in an eco-system prone to abuse.
My PIL against Excesses in anti-Rape Law: The result of these alterations in the law has been that a man
may be subjected to the full brunt of the criminal law and the obvious,
concomitant loss of reputation merely on account of allegations of rape or
sexual assault, all because the “due process” requirement has been seriously
undermined through the 2013 amendments in the rape law.
The abuse of anti-rape law becomes much
easier because of the strict provision that the identity of the prosecutrixis
to be kept anonymous while the identity and even photographs of the accused are
freely broadcast on television and publicized on print media. This in effect means that getting a man
arrested and defamed on false charge of rape involves zero risk for
unscrupulous women especially considering that in our legal system, even after
falsity and malafide nature of charge is proven in court. A false and malafide rape case ends up
ruining not just the life of the concerned individual but also the entire
family, especially if the person concerned has old parents or young children of
impressionable age. It can also ruin the
marital life of the targeted man as well as his professional career.
Personally witnessing countless cases of
misuse, on March 17, 2017 I filed a PIL in the Delhi High Court for review of
the anti rape law with a view to getting unjust unfair and lawless provisions quashed. Kapil Sibal is arguing this PIL in court.
Draconian Rape Law Failed as Deterrent: Global experience has shown that draconian provisions have failed
to act as deterrent in criminal law generally and in rape law in particular. It is not the severity of punishment but the
certainty of punishment in genuine cases that brings down crime in any
society. It has also been proven beyond
doubt that the 2013 amendments have failed to act as a deterrent to sexual
atrocities. There is no decline in either the number of rapes being committed
every year or in the brutality accompanying rapes. Leave alone curbing
incidents of rape in secluded places or in privacy of homes, the law and order
machinery has failed to curb even custodial rapes in police stations and
hospitals. Similarly, after the 2013 amendments, cases of gruesome forms of
rape, including more and more child rapes, no less brutal than the Nirbhaya
case are being reported on a daily basis. Gang rapes have also become
alarmingly frequent. What is worse, rape is being treated as a youthful sport
by lumpenized youth, many of who proudly post video recordings of the acts of
gang or individual rape on social media. This clearly shows that instead of growing
fear of the existing stringent anti rape law, people are cocking a snook at the
law enforcement agencies.
Marital Rape Law would be Lethal: Just as the draconian provisions of 2013 in the anti-rape law have
lent themselves to easy abuse while having zero effect in curbing either the
incidents of rape or their brutality, amending the rape law to include marital
rape amounts to putting lethal weapons in the hands of women without any
safeguards for married men, many of who are already reeling under the “legal
terrorism” of S.498A and unreasonable provisions of the DV Act. It has now been well established that thousands
of falsely implicated men have committed suicides and countless families have
been destroyed beyond repair because our new fangled laws carry the mistaken
assumption that women are too angelic to book false cases and that only hapless
victims among women go to police stations and law courts.
Husbands will be a 1000 times more vulnerable
than non-husbands to becoming targets of mala fide charges. Since the post 2013 anti rape law doesn’t
require any proof of tell-tale signs of violence on the woman’s body to suggest
that she was forced into sex, or that she resisted sex on a particular night,
it is easy for a wife to allege ‘rape’ but impossible for a man to prove that
the act was consensual.
Most married couples share the same room and
sleep in the same bed. Sex between
marriage partners is normal routine and is considered part of marital
obligations on both sides. Countless
women and men have sought divorce in every country of the world, including
India on the ground that they have been denied sexual satisfaction either due
to the partner’s inability to perform sex or physical aversion towards each
other, just as countless women have walked out of their marriages to escape
physical and sexual violence.
What protection does a man have against a
wife who cooks up a rape charge to settle some other scores or get rid of the
husband in order to live with her lover in her jailed husband’s house? The only way married men can protect
themselves from such a post facto charge is to have CCTV cameras installed in
every nook and corner of the house, including the couple’s bedroom and
bathroom. Or do we want husbands to get
a duly notarized signed statement on judicial paper before every kiss, embrace,
or sexual act?
What if the charge has been filed for the
purpose of extortion, as is happening routinely with the existing rape law? Gone are the days of Sati-Savitris who would
rather die than act vindictively towards their spouses. Nor are today’s women afraid of being labeled
as “rape victims”, since for the unscrupulous women it brings economic and
other rewards. Crying ‘rape’ has opened
many lucrative opportunities for blackmail with the woman even getting social
sympathy, while the man and his family are ruined for life.
This is not to deny that there are plenty of
brutish husbands who inflict heinous forms of violence and indignities on their
wives. But the real remedy against such
husbands is to walk out on them, not insist on sharing the same bedroom and
same bed with such a man. That is
exactly what self respecting women do.
Divorce laws are today in favour of women. So why not seek freedom from brutish husbands,
especially since the DV Act also protects the wife’s right to residence,
maintenance and childcare?
At this feminazes will scream: “In our
conservative society, most women are petrified of seeking divorce.” But the very same petrified women won’t mind
sending their husband to jail for minimum seven years? Their second idiotic counter would be: Why
should a rapist husband be let off with a mere three year jail while other
rapists get a minimum of seven years?”
To this I can only say, if a woman continues
staying with her husband despite severe atrocities deserving seven year jail,
she has only herself to blame, now that the marriage, divorce and maintenance
laws are heavily weighted in favour in women.
Those who have failed to build exploitation free lives with existing
pro-women laws, they don’t deserve yet another law which has the potential to
tear asunder family life and social fabric in India.
As per crime
data released by BPRD for 2015, suicide rate among married men on account of
marital discord is more than twice as high as among married women. Of 91528 men
who committed suicide in 2015, 64534 were married men. By contrast, of the
42088 women who committed suicide, 28344 were married. But has any feminist
cared to express concern at this high rate of self killing among married men?
When I
founded Manushi in 1978, women’s rights activists used to be celebrated and
admired for their moral courage in giving voice to the voiceless. But the irresponsibility with which a section
of women’s rights activists have made use of these laws, has lent almost
fascist connotations to feminism, with terms like ‘Feminazi’ coming into
currency because of their sadistic delight in pushing for venal laws without
any safeguards. Therefore the wisdom of these “women-protection measures” that have
proved ruinous for countless families call for a serious and comprehensive
review.
When laws are not
judiciously crafted, when draconian provisions are added as compensation for
failure of the law and order machinery to ensure security of life leading to
easy abuse of law, it leads to mistrust and disrespect towards all institutions
meant for enforcing law and order & dispense justice. The resultant
cynicism & nihilism among citizens destroys the collective resolve and
ability of society to combat crimes. When women, who are traditionally seen as
the moral conscience of society and hence worthy of reverence and special
protection measures, are found to be misusing and abusing laws enacted for
their protection, it delegitimizes the very idea of special measures for
protection of women. The misuse of the above mentioned provisions for the
purpose of blackmail, extortion, revenge and other malafide purposes goes to
confirm that whichever individual or group in society, irrespective of gender,
caste or class, is bestowed with legal power to tyrannize others for its own
benefit, will invariably end up doing so. That is why the principle of
constitutional equality--which becomes meaningless without equality before law
courts--cannot be compromised under any circumstances. At the same time it is vital to build
effective safeguards against misuse and abuse of laws by unscrupulous
persons. A pre requisite for that is an
honest, well-trained and accountable police force as well as an effective
justice delivery system. Sadly, the
feminazis don’t seem to be bothered about these niceties.
First published as cover story in The Week, issue dated 24th September, 2017 : (http://www.theweek.in/theweek/cover/gender-justice-and-the-feminazi.html)
First published as cover story in The Week, issue dated 24th September, 2017 : (http://www.theweek.in/theweek/cover/gender-justice-and-the-feminazi.html)
