By John B Monteiro

Jul 19: Is the pendulum on women’s sexual rights swinging out of control? The fight for women’s rights can take bizarre forms, including keeping signing and storing consent forms before married couples have their sexual romp as can be seen from the latest report in The Times of India by Himanshi Dhawan (18-7-2015) under which the subject is scheduled to be discussed on July 20, 2015. But, first the facts.

Marital rape could soon be an offence, if a Centre-appointed panel has its way. The Pam Rajput committee, that recently submitted its report to the Women and Child Development (WCD) ministry, has recommended that as a pro-woman measure, marital rape should be consider an offence irrespective of the age of the wife and the relationship between the perpetrator and survivor.

The recommendations will be discussed in an inter-ministerial consultation on July 20, 2015.

Earlier, WCD minister Maneka Gandhi voiced her support on the view that marital rape was a form of violence against women and was "unacceptable". "My opinion is that violence against women shouldn't be limited to violence by strangers. Very often a marital rape is not always about a man's need for sex; it is about his need for power and subjugation. In such case, it should be treated with seriousness," she had said.

This is in sharp contradiction to the government's stand. "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 marriage as a sacrament," Haribhai Parathibhai Chaudhury, minister of state for home, had told Rajya Sabha in April 2015.

Contradicting the argument, activists and champions of women's rights, as well voices in the opposition ranks, have denounced the government stand as retrograde, with many pointing out that the UN Committee on Elimination of Discrimination Against Women has recommended to India that marital rape be criminalized. Late Justice J S Verma committee also recommended the criminalization of marital rape.

According to the UN Population Fund, more than two-thirds of married women in India, aged 15 to 49, have been beaten, or forced to provide sex. In 2011, the International Men and Gender Equality Survey revealed that one in five has forced their wives or partner to have sex.

Some of these concerns are likely to come up in the meeting on july20, 2015. This calls for a background focus on the subject which involves the question: Should Laws Enter Marital Bedroom?

A statement in Parliament on April 29, 2015 said that marital rape is not applicable to India because in the country marriage is treated as a sacrament and for various other reasons. Before this statement, things were different under Domestic Violence Act, 2006 and the following has relevance.

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. The ideal marriage had its ingredients as noted by James Beattie, Scottish poet (1735 – 1803):

No jealousy their dawn of love o’ercast,
Nor blasted were their wedded days with strife;
Each season looked delightful as it past,
To the fond husband and the faithful wife.

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. John Gay, English poet, (1688-1732) has a take on the interdependence of spouses in matrimony:

The husband‘s sullen, dogged, shy,
The wife grows flippant in reply;
He loves command and due restriction,
And she as well likes contradiction,
She never slavishly submits;
She’ll have hers way, or have her fits.
He his way tugs, she t’other draws;
The man grows jealous and with cause.

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 bedside table.

Now things have changed with the latest law, Domestic Violence Act, having got Presidential approval on October 25, 1006. For the first time, it introduces 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 to be signed and stored in the bedroom. Sexual foreplay may have to start with the signing of consent form and keeping it safe from subsequent destruction. The wife can raise a dispute if the man did not rise to the occasion or over-rose to her comfort level or expectation.

The domestic violence 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 to boot – in Kolkata.

What did Shakespeare mean when he wrote, in Love’s Labour Lost, of matrimony as “A world without end bargain”? Did he mean that the bargain was struck once and for all to last a life-time? Or, did he mean bargaining continuously through the whole of one’s marital life? In this context, It is also relevant to note that Shakespeare had a sneaking sympathy for the rights of women. He wrote in Othello:

Let husbands know,
Their wives have sense like them: they see, smell
And have their palates for both sweet and sour,
As husbands have.

Now we come to the question: Is marriage an open licence to have sex with one’s marital partner? The conventional wisdom said “Yes”. But the emerging laws say “No”. Thereby hangs a long history and a string of laws governing inter-sex relationships under changing marital laws.

An India Today-AC Nielson-ORG-MARG survey had come to the conclusion that sex without consent (marital rape) is a reality in the Indian bedroom. To the question: “Has your spouse forced you to have sex?” 42% replied “very often” – 38% males and 45% females. “Sometimes” was the reply from 46% males and 39% females.

This has not resulted in a beeline to the courts with plaints of marital rape. But, things are changing. Rochana Majumdar, commenting on the survey, said: “As feminist scholars we learn to acknowledge that women’s silences speak volumes. Our task is to weave narratives of their pain by trying to make sense of the reasons that render them mute. Many of the responses indicate how women have become more assertive on matters relating their bodies, their pleasures and their sexuality.”

Dr Harish Shetty, social psychiatrist from Mumbai, commenting on the subject says: “The definition of forced sex would mean the refusal of modern woman to be doormat. It is an era of ambivalence with the transition from blind acceptance to reluctant refusal, where the woman yields but with.

Now we come to the question: Is marriage an open licence to have sex with your marital partner? The conventional wisdom said “Yes”. But the emerging laws say “No”. It, appears that Marital rape, from being absurd or incredible, is a living reality with serious legal implications.

Post-script:

Should rape laws be unisex? According to media reports, on July 16, 2015, a taxi driver who reached two women to their building in Delhi was lured into their flat to collect his fare and while inside was asked to have sex with one of the women. On refusing, one of them violently tore his clothes and forced herself on him while the other woman videographed the scene. A police complaint has been lodged on this episode and the outcome is awaited. But, it points to the fact that raping is not the monopoly of men and women can also be the culprits!

Veteran journalist and author, John B Monteiro now concentrates on Editorial Consultancy, having recently edited the autobiography of a senior advocate, history and souvenir to mark the centenary of Catholic Association of South Kanara and currently working on the history/souvenir to mark the platinum jubilee of Kanara Chamber of Commerce & Industry. He is also Editorial Consultant and content provider for Vishal Jagriti, the English monthly of All India Catholic Union, now published from Mangaluru.