March 1, 2013

I will be master of what is my own;
She is my goods, my chattels, she is my house,
My household stuff, my field, my barn
My horse, my ox, my ass, my anything;
And here she stands, touch her whoever dare.

 - William Shakespeare, English dramatic poet (1564-1616) in Taming the Shrew.
 
What a fall husbands have to suffer in relationship to their wives – a journey from ownership to equal partners, with some laws giving wives a handle to blackmail their husbands. Backing the long-standing demand of the women’s activists that marital rape be considered as an offence, the Justice J.S. Verma committee has said marriage or any other intimate relationship between a man and a woman is “not a valid” defence against sexual crimes like rape.

The three-member panel, which was constituted to recommend amendments to criminal laws in the wake of the national outrage over the December 16 gang rape in Delhi, has sought “an exception for the definition of marital rape in the existing laws.” “The law ought to specify that marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation,” the committee said in its report. The committee said the “relationship between the accused and the complainant is not relevant to the enquiry into whether the complainant consented to the sexual activity and the fact that the accused and the victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.”

Quoting various court judgments in different countries, the panel said “the exemption for marital rape stems from a long outdated notion of marriage, which regarded wives as no more than the property of their husbands.” “Our view is supported by the judgment of the European Commission of Human Rights in C.R. versus UK, which endorsed the conclusion that a rapist remains a rapist regardless of his relationship with the victim”. “According to the common law, a wife was deemed to have consented at the time of the marriage to have intercourse with her husband at his whim. Moreover, this consent could not be revoked,” the committee said.

The defendant cannot argue that the complainant’s consent was implied by the relationship between the accused and the complainant, the report said. In South Africa, the 2007 Criminal Law (Sexual Offences and Related Matters) Amendments Act (Sexual Offences Act) provides that marital or other relationship between the perpetrator and the victim is not a valid defence against the crimes of rape or sexual violation. “Even when marital rape is recognised as a crime, there is a risk that the judges might regard marital rape as less serious than other forms of rape, requiring more lenient sentences, as happens in South Africa. In response, the South African Criminal Law (Sentencing) Act of 2007, now provides that the relationship between the victim and the accused may not be regarded as a ‘substantial and compelling circumstances’ justifying a deviation from legislatively required minimum sentence for rape,” the report said.

It is also important that the legal prohibition on marital rape is accompanied by changes in the attitudes of prosecutors, police officers and those in society more generally. Citing the example of South Africa where, despite legal developments, rates of marital rape remain shockingly high, the Verma committee report points out that a 2010 study suggests that 18.8 per cent of women are raped by their partners on one or more occasion. Rates of reporting and conviction also remain low, aggravated by the prevalent beliefs that marital rape is acceptable or is less serious than other types of rape.

This takes us to the background to the subject of declining ownership rights of husbands over their wives. All religions accept the sanctity and permanence of matrimony. Take, for instance, the prayer recited at the solemnisation of Christian matrimony: “To have and to hold from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, to love and cherish till death do us part”. It was to be a life-long bond. Another version of this prayer had “love and obey “tilted in favour of the bridegroom. Now, the “obey” has been deleted and it is “cherish” for both.

Despite wives being considered properties of husbands, marriages worked, any internal conflicts not coming into the open or landing in divorce courts. But, all was not so cozy and rosy, with many marriages vitiated by the deviant behavior of the spouses. Robert Burns, Scottish poet (1759 – 1796), in his The Hen Pecked Husband, says:

Cursed be the man, the poorest wretch in life,
The crouching vassal, to the tyrant wife,
Who has no will but by her high permission;
Who has no sixpence but in her possession;
Who must to her his dear friend’s secret tell;
Who dreads a curtain lecture worse than hell.
Were such a wife fallen to my part,
I’d break her spirit and I’d break her heart.
 
That freedom to break her spirit or heart is an old privilege. Now, laws in India would put the husband in prison should he contemplate such a misadventure. A series of laws seem to pose the danger of overprotecting the wives and driving the husbands to desperation. In the bargain, the law makers seem to have forgotten that, like one needs two hands to clap, interaction between the spouses is central to the working of matrimony – good, bad or indifferent.
 
There is a saying that an Englishman’s home is his castle and no one can intrude into its privacy. Similarly, the matrimonial bedroom was considered the most private sanctuary of the couple. It is not only the pleasure chamber but also the reconciliation retreat – to kiss and make up. Only books like Kamasuthra or sex manuals could keep company of the spouses in their matrimonial bed.
 
Now things have changed when Domestic Violence Act, got Presidential approval on October 25, 1006. For the first time, it introduced the concept of “Invisible violence” at home – physical and verbal abuse, withholding of financial rights and sexual cruelty. Denial of company, indifference and abstinence from sex are legal grounds for divorce. She can cite “marital rape” as ground for divorce. In other words, she can turn around and say that she had not consented to the sex she has had with her husband. This is the intrusion of law into the bedroom. This might lead to the farcical situation of having consent forms hung from bedposts in the marital chamber and separate lockers to store the signed forms. Sexual foreplay may have to start with the signing of consent forms and keeping them safe from subsequent destruction.
 
This Act is preceded by a succession of Acts and court rulings that have made life miserable for men. They are now vulnerable to blackmail by wives threatening to take recourse to the anti-male laws. There has been strong reaction to this trend and men have banded together under the banner of Society for the Prevention of Cruelty to Males – with a women as President!. But, that is another story for another time.

John B. Monteiro, author and journalist, is editor of his website www.welcometoreason.com (Interactive Cerebral Challenger) with instant response format. His latest book Corruption - India’s Painful Crawl to Lokpal, priced at $21.50, has been published in USA by Strategic Book Publishing and Rights Co. Further details can be had from Google by keying in “John B. Monteiro”, which features the website created by the publisher for his book and the press release on the book.