I have shown earlier, the lawyer community is very keen to take out marital rape exception and introduce marital rape law. A Supreme Court Advocate Mr. Gautam Bhatia has written about the removal of this exception.
He mentioned that the PIL pending at the Delhi High Court and showed that Marital Rape exception violates Right to Autonomy and Privacy under Article 21 of Indian Constitution and Violates Right to Non-Discrimination under Article 15(1).
At the outset, the legal fraternity needs to understand that with marriage we lose our right to Autonomy and Privacy. Article 21 states – “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
To understand whether this Article holds good in marriage, we need to understand the concept of marriage first. In Hindu customs, marriage is the union of two souls, it is a union where two souls combine into one and function as a unity. That is why a family (and not an individual) is considered as the unit of society. Like we may have different body parts but everything together functions as one body (one unit). So, in a married relation, the family as a whole needs to be looked into as a unit, rather than the individuals. Like we can’t look at our body parts separately, we should not look at two married persons as a separate entity with ‘Privacy and Autonomy’. Because if that happens then marriage bears no meaning, they become two separate individuals and never gets bonded together.
Also, the Article 21 of Indian Constitution does say that there may be an exception to this liberty under established legal processes. If we consider ‘marriage’ as a legal process that too becomes meaningless when we see two married individuals as separate entities with ‘Right to Privacy’. Those who want their ‘Right to Privacy’ intact, may decide not to get married, simple.
The argument that Marital Rape exception violates Article 15 (1) – Right to Non-Discrimination, is also not valid because all gender biased laws that violate men’s fundamental rights are exceptions. So, if we bother about non-discrimination then all gender biased laws should be scrapped immediately.
In his article, Advocate Bhatia mentioned that there are four arguments stated against making MR an offence.
The First point he mentioned was the argument that the institution of marriage will break down if Marital Rape exception is taken down. He raised the question, that this opposition assumes that marriage needs to be based on coerced sex. However, this is marred by high-level of generalization. Married women (and not men) do have provision to break free from marriage, as sexual violence is already a crime under DV Act. And even under this Act, there are hardly any complaints of Sexual Abuse. Recently, Feminists did try to create stories of marital rape in different ways, but those were only left to one’s imagination. Point is, our marriage is certainly not based on sexual coercion.
One more point that advocate fraternity needs to know, is the decreasing potency of men around the world. Decreasing Testosterone level among men of all age groups has already reduced sexual activity among couples which is already a growing concern globally. Hence, the feminist argument that marriage is based on sexual coercion is completely baseless.
The Second argument he had quashed was the argument that ‘by definition sex within marriage can never amount to rape’. The third argument he refuted was that ‘criminalization of marital rape, would violate the privacy of marriage by “allowing state into the bedroom”.
To refute these two arguments, he stated that these were good in 1860 when IPC was formed and these were based on assumption that marriage is one time with life-long consent to have sex and second the institution of marriage should be beyond the realm of constitutional scrutiny. His argument, that both of these are entirely incompatible with constitutional democracy founded upon ideas of freedom and autonomy. He mentioned the Supreme Court’s famous judgment on Right To Privacy.
Where the legal fraternity is hugely going wrong is that in marriage when two persons are living together, sharing their most intimate space and intimate time together they can’t be free and can’t restore privacy. Getting married itself is sharing one’s privacy with the other person, if not, they can live single in isolate places. No matter what the interpretation of Supreme Court Judgement was, one can’t be completely free and also have complete privacy in a marriage.
If one is allowed privacy and freedom both in marriage, then the question will arise, if a partner does not allow the other to have sex, will the other partner be free to have a third partner or sex worker in the bedroom to have sex with? Can the two partners in a marriage be so free and can their privacy be so much protected that they can do whatever they want even in a matrimonial relation? What is the meaning of marriage then? The questions on morality become too big when we look at the whimsical court behaviour.
If the Supreme Court ruling on Privacy needs to be adhered to in a marriage, then what better human society we can have than a society of cats and dogs? Do they have a living where everyone is free to have sex with anyone and there is no partner choice (unless of course, a bigger and powerful animal come to discipline them)? Where is the society then? Is the Supreme Court trying to act like that bigger animal now?
Lawyers including the Supreme Court here need to know about Saptapadi, the vows taken by the Hindu husband and wife during marriage. These vows set the morality, duties, and responsibilities of the spouses. While Hindu religion does ensure that the wife will have to provide sex to the husband, it also prohibits a husband from raping a wife. Taking lifelong care of the wife in all possible ways is husband’s duty. A husband is also prohibited to have indiscriminate sex with the wife. To ensure husband’s sexual rights of ‘having sex’ and also to protect women’s sexual rights of ‘not having sex’, Hindu customs allowed a man to have multiple wives and prohibited husbands from having sex with his own wife during her menstrual days and during her pregnancy. So, if we look at the original Hindu customs, rights of both spouses were already protected that feminists and especially lawyers have completely screwed up and continue doing so by misinterpreting different things.
If these lawyers brought monogamy to Hindu society, then where is the freedom of choice restored? So, our freedom is also restricted to the whims of lawyer community or Courts, which are no longer honorable.
Stating the Supreme Court verdict on Right to Privacy, Advocate Bhatia said, a woman can’t be deemed to have waived off their decisional autonomy upon marriage. He mentioned, that more crucially SC held that privacy was a right possessed by all individuals.
If that is true and Supreme Court truly meant it then why is that making an Aadhar card becoming compulsory for us? Why is every government benefit tagged to Aadhar card and that is not the violation of our privacy? So, the concept of individual privacy and freedom is all farce. Supreme Court and government can violate this anytime at their free will and whimsical behaviour.
In his argument, Advct. Bhatia mentioned DY Chandrachur’s plurality judgment where he explicitly acknowledged “feminist critique of privacy” and mentioned that in the contemporary formulation of privacy must emancipate individuals rather than subordinating them. The Problem here is again in the judicial outlook which is driven by feminists’ outlook rather than rationalism. The argument is based on a premise that marriage oppresses women and hence is derived from a shallow perspective which was aimed at making individuals free which is nothing but breaking the institution of marriage.
So, if we follow this argument of privacy, then will it be okay if a spouse denies sex completely to the other spouse in the name of privacy? Shall the other spouse get a divorce on the ground that s/he is denied sex by the partner? If yes, that itself is another biggest violation of this utopian theory – ‘Right to Privacy’. Because this violates the ‘right to privacy’ of the wife. If no, then it’s a violation of ‘right to privacy’ as well because that violates ‘right to privacy’ of the husband. So, there can’t be any such thing as ‘right to privacy’ in marriage.
Advct. Bhatia’s last argument was again funny and self-contradictory to the rest of his article. He said, it is statistically proven that an overwhelming percentage of rape case are committed by known persons like spouses. Question is, if the article is about making marital rape a crime (which did not happen yet) then where did he get this data? The reality of the data, however, is that these rape cases are filed against boyfriends and most of these are ‘consensual sex on the promise of marriage’ which is considered as rape today. Problem with Mr. Bhatia is probably the clinching argument for him is most frivolous and self-contradictory to his article. Lawyers, of course, do not understand statistics properly or it might be a clear attempt at misleading people.
In his conclusion, Advct. Bhatia stated that if the court removes marital rape exception, it will be realized the most important promise made in the Privacy Judgement. Problem is, when we become too personal in everything then why marry? How can two persons with their freedom and privacy intact share a private space, private time and most importantly private feelings? Marriage itself is making the other person an integral part of one’s personal space and these vague and whimsical arguments are not only baseless but self-contradictory to the core. Unfortunately, most often when lawyers support bringing any new law, it stinks with their professional career option and better- earning potential. Almost always, in these arguments, they don’t raise a real social concern or try bringing any positive social reforms. If there is any social reform, however, that is to create more earning opportunities for the criminals by breaking the families in the name of some frivolous rights that don’t exist.