Tuesday, April 19, 2016

Sex After Marriage, Can be a Marital Rape - New Debate In India

Maneka Gandhi's  statement about marital rape has caused a massive uproar, in India now a days.

"It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc,"


'marital rape should be made a crime' and 'marital rape not being a crime is a blot on this country.'
Attorney General Mukul Rohtagi said

"Calling marital rape a 'concept' is such nonsense. It is a crime. It is rape. It is violence," said Marriage is not a contract that allows unfettered access to a woman's body" 
Farah Naqvi, a women's rights activist.

Rape and Sex after Marriage are synonyms?
Section 375 in The Indian Penal Code says:
“Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:—
(First) — Against her will.
(Secondly) —Without her consent.
(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
(Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.
(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
(Sixthly) — With or without her consent, when she is under sixteen years of age.
Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.]

Validity of Concept
First, Second, and Third scenario is common in Indian Families, most of the time Husband, having sex with his wife against her will and consent, but the last explanation reverse the whole picture, which exempt such sex to Rape.

It would be right to say "Marital Rape" or an Emotional abuse by her husband?

The Root
The root of the word "Rape" are in "Raptus" means "imply violent theft, both property and person,  same as women's abduction or sexual molestation, the theft of women body against her consent.
Statement of Chief Justice in England Sir Mathew Hale, is important here
 “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 herself in kind unto the husband, whom she cannot retract.”

Well wife were never subject to the rape law, does it means, women has no choice over his body? or it is subject matter of Husband, and she has to act according to the wish of his?

Is sex obligation in marriage?
Certainly, not, she has sole right and his consent matters. But when we look at the law in this regard such as Restitution of Conjugal, “the right of relating to marriage or to married persons and their relationships” in every religion of Indian society, tend to support this.
                                                 
Concept of Marital Rape is Justify?
Family and marriage are the basic institutions of any society. Approving the concept of "Marital Rape" would be sabotage on the institution of marriage, as the idea of marriage is sacrosanct, and sex is the basic foundation of it. However, it doesn't mean the Wife considered as a property, or an instrument of sex in marriage and sex is Man's Right.

Under Indian society, Marriage is not only a relationship between two entities but it is an Institution, which make the foundation of society, and ultimately the nation.  Adding the element of office or criminality in it would be an attempt to pollute the Institution, and the whole structure of society will collapse.

The institution of Marriage is a primary institution in this society, and individual’s existence in the society is bound by certain established forms of procedure characteristic of group activity.

On that basis such right cannot be given to one individual such as Husband, wife are also entitle for it.

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