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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.
