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Marital rape not real because marriage = consent, argues MRA petitioner

Durga M Sengupta | Updated on: 31 August 2017, 21:33 IST
(Photo: Arya Sharma/Catch News)

The Delhi High Court has agreed to hear an intervention petition against the criminalisation of marital rape filed by a men's rights activists (MRA) NGO Men Welfare Trust (MWT). The court is currently examining the exemption in Section 375 (rape law) that allows for marital rape, as long as the wife is over 15 years of age.

MWT president Amit Lakhani and his colleague Ritwik are arguing in person for this case. Catch contacted Lakhani to understand why anyone would want to scupper a possible marital rape law.

Sex comes gift-wrapped with marriage

Their prima facie argument, Lakhani tells us, is that consent to sex is a natural part of the agreement that is marriage. “When a man and a woman are getting married with their free will, whether in India or anywhere else in the world, they lose their right to have even consensual sex outside their marriage. Under IPC 497 (adultery).”

In marriage 'wife and husband are making a conscious decision to keep sexual relations'

This means that there's no room to withdraw consent in a marital alliance. Or so Lakhani believes.

“A marriage is solemnised fully by choice and enthusiastic agreement between a man and a woman, with full knowledge of everyone [around them]. It's not by accident or force. Even going by conjugal rights, wife and husband are making a conscious decision to keep sexual relations with the spouse.”

On being asked if this means there's no rape in marriage, Lakhani backtracks.

“No, we're not saying that there cannot be suffering, or there cannot be sexual abuse of either spouse in a matrimonial relationship. It can happen to a man, it can happen to a woman. Although, the petitioners are completely ignoring the fact that globally these laws are gender-neutral.”

This statement by Lakhani suggests that there's rape, but it should be recognised only if both men and women can be implicated.

On being challenged on those grounds, he says, “No, no. I am not saying that I'm asking for a gender-neutral law. I'm just telling you that the [pro-criminalisation] petitioners are also twisting their own judgements that they're relying on.

“You cannot pick one line of the judgement and ask the judge to completely amend the law.”

Diamonds are a girl's... Stop

Lakhani's second argument, therefore, is that he's uncomfortable with the exception being removed from Section 375, instead of a new law being crafted.

“Rape cases can be filed even after 10 years,” he says. “If you don't make a new law and only change an amendment, then the wife can simply say I was being raped for the last 10 years and today I'm coming and filing this case.”

'All these laws are being used to cash in on a failed relationships'

“Second, even consensual sex on the promise of marriage is termed as rape. So, tomorrow if you only remove the exception in the law, the wife can say I was promised a thing – maybe a diamond necklace – which I didn't get, I consented because of this, and it should be termed rape.”

Lakhani's conviction seems predicated on the assumption that women are gold-diggers, preferring a diamond necklace over companionship.

To reaffirm our understanding of what he means, Lakhani goes on to day, “All these laws are being used to cash in on a failed relationship.”

Later in the conversation, he contradicts his stance on women, insisting that MRAs care for women and respect them. Commenting on FEM, a group of men supporting the criminalisation of marital rape, Lakhani says, “There are men working for women's rights. The feminist men. The irony in India is that if you say you're a man working for women's rights you're applauded and rewarded. But the moment you say you're working for men's rights, people see you as anti-woman.”

“But MRAs are just like anybody else, we respect women. But we're working for men, because we feel this is an ignored entity.

“When we talk of equality, we shouldn't make gender-based laws. Our Constitution says that you can give women some provisions (and provisions are not laws) but with gender-based laws you're actually creating a gender divide. Equality is also about equal responsibilities.”

Take it, take your freedom

Interestingly, Amit Lakhani is also of the opinion that there shouldn't be provisions for women if there aren't for men.

When asked about women's safety: 'Men are also not safe.'

“Okay fine, give them provisions. Like in the metro you provide a coach for women. But then they should make it for men and women both! In India, they make a coach for women and are like 'let the men suffer'.

“You cannot suppress one gender to empower the other. That is not was equality is.”

On being asked how he's equating women's safety with room for men, he says, “Men are also not safe.”

“Give women equal opportunity, let them come forward, let them work. In fact, let them take equal responsibility in the growth of the country... We don't have any regressive thoughts like women should be in their homes etc, etc.”

Circling back to marital rape, he says that “spousal violence” too is gender-neutral. But that it shouldn't be called rape.

“Globally, it's called spousal violence, and when it comes to spousal violence against women... well, it's already criminalised in India.”

So many laws, so little crime?

That's right. The MRA argument against criminalising marital rape is that there are enough and more laws that protect women, and therefore, the removal of this exemption only leaves married men more vulnerable.

“The government of India is saying, how will you prove this, it'll be based on testimony... They have a different stand. We have a different stand that there are already sections supporting this.

1. On Domestic Violence Act, he says:

“It covers emotional, economical, physical, and sexual violence. To the extent, where the wife can get a protection order, and if that's violated husband, there's a jail term of up to 1 year! When this act was being formed, they refused to term it as rape – some better sense must have prevailed.”

'If the issue is addressed in a series of laws, why do we want another law on the same issue?'

2. On Section 498A (dowry law), he says:

“This covers all sorts of cruelty, which includes physical, mental or sexual. Any kind of cruelty, and a woman can immediately go and file a case under 498A, which can be filed with just a testimony.

“Those petitioners say that every law is misused. But no law is misused like 498A to affect the whole family. There's stigma, then if the person goes behind bars, the life and liberty of that person is curtailed.”

3. He also brings up Section 377:

“Section 377 covers unnatural sex, which is being widely used and misused. We have n number of complaints where the marriage is not working out, where there's marital discord, all these laws are being invoked against the husband.”

Lakhani then argues that even Section 375 applies in the case of separated partners. He uses this to explain his case that marriage means consent. “Because when you get separated you withdraw your consent. There's a clarity,” he says.

“Now if the issue is addressed in a series of laws, why do we want another law on the same issue?,” Lakhani asks.

“Moreover, comparing rape laws in India and rape laws in other countries is a comparison of apples and oranges. Again, I'm not saying we should have a gender-neutral marital rape law, but their rape law itself is gender-neutral. So if we really want to be that progressive, let's first make the rape laws gender-neutral.”

Please. Save. Men.

So, finally then, does MWT want a gender-neutral law, a new law altogether, a change in Indian rape laws, or a mechanism for the protection of men in such cases?

We'd put our money on the last option.

“Women already have recourse,” says Amit Lakhani. “There are cases where men are made to have sexual intercourse when they don't want to and they do it. When they slog in the office the whole day and then they come home, they don't want to have sex, but they do.”

Having already assumed that women sit at homes waiting to pounce on tired, hard-working, bread-winner men, Lakhani concludes, “If they deny [the wife] sex then it is cruelty as per the courts. So there is no recourse for men. Rape laws are not gender-neutral. First recognise male rape, then come to this.”

While parts of his argument are understandable, a lot of what he puts forth is based on the assumption that men are disenfranchised. This is historically inaccurate. Besides, in the MRA language there's room for blatant misogyny, made evident by the assumption that women are by nature property-minded and are out to trap vulnerable men.

What's most baffling though is that MWT's fall back solution to protect men in this scenario is to fight against the law, instead of taking it forward to a gender-neutral conclusion.

First published: 31 August 2017, 21:17 IST
 
Durga M Sengupta @the_bongrel

Feminist and culturally displaced, Durga tries her best to live up to her overpowering name. She speaks four languages, by default, and has an unhealthy love for cheesy foods. Assistant Editor at Catch, Durga hopes to bring in a focus on gender politics and the role it plays in all our interactions.

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