The proponents of "marriage strike" controversially argue that criminalizing marital rape would make marriage a dangerous institution and result in baseless criminal charges against them.
India is one of more than 30 countries worldwide where a husband cannot be prosecuted for raping his wife
A section of Indian men has taken to social media platforms to lobby against the criminalization of marital rape. This comes as a court in the country's capital Delhi hears a petition against marriage-linked exemptions in the nation's laws against rape.
While India has enacted strict anti-rape laws over the last decade, it finds itself on one of the less sought-after global lists: a list of over 30 countries where a husband cannot be prosecuted for raping his wife.
Under the current criminal code, rape is defined as sexual intercourse with a woman without her consent, against her will or if she is a minor. There are a few exemptions to this, including medical interventions or procedures, no physical resistance, and sexual intercourse between a man and his wife, who is older than 18 years of age.
But lawyer Karuna Nundy, counsel for the petitioners Rit Foundation and All India Democratic Women's Association (AIDWA), has cited an earlier Supreme Court of India judgment to reiterate: "A rapist remains a rapist, and marriage with the victim does not convert him into a non-rapist."
Men fear possible criminalization
As the court hears petitions filed by the Delhi-based non-profit, AIDWA, and two individuals, several men took to Twitter, threatening to boycott the institution of marriage if marital rape is criminalized.
The proponents of the "marriage strike" used the hashtag #marriagestrike to protest against the possible criminalization by saying that men would face the brunt of baseless criminal charges if the exemption is struck down. They controversially argued that it will make marriage a dangerous institution for men, who they say already face a number of false cases of abuse and dowry under the current laws.
Using the hashtag #NoRepublicDay4Men on Twitter on January 26 as India celebrated the day its constitution came into effect, several men's rights organizations — including the Save Indian Family Foundation — said India was no country for men, who lived like "second-class citizens." Claiming that there were "large-scale violations of civil liberties and human rights in the name of women's empowerment in India," these organizations reiterated their mission to what they see as men's rights.
But women's rights activist Kavita Krishnan believes that this outrage has been orchestrated by groups that receive disproportionate visibility in the media.
"Their argument is based on the premise that men are entitled to sex in a marriage. The whole idea of a marriage strike comes from this: we will withhold marriage if we do not get access to sex," Krishnan told DW. "The idea of this transaction is deeply problematic."
History of legislation on marital rape
India's criminal code, formally referred to as The Indian Penal Code (IPC), was enacted in 1860 under British colonial rule. At the time, the UK upheld the the "doctrine of coverture," where a woman's legal rights and obligations were subsumed by those of her husband after marriage.
It meant women could not perform activities like buying property or entering into a contract against their husbands' wishes. Instead, in return for protection and support, women owed their husbands a "consortium" of legal obligations, including sexual intercourse.
According to experts, the marital rape exemption is an archaic piece of legislation that traces its roots to colonial rule.
Senior lawyer Rebecca John, who is advising the court on the matter, told the bench that the expectation of sexual relations in a marriage cannot lead to a husband having forcible sex with his wife.
'Eroding the institution of marriage'
In 2016, Prime Minister Narendra Modi's government's official stance was that criminalizing marital rape would "destabilize the institution of marriage and become a tool for harassment of husbands."
But the petitioners have argued that according to data from the National Family Health Survey in 2015-16, over 83% of married victims of sexual violence (between the ages of 15-49) said their current husband was the perpetrator. For 9%, the perpetrator was a former husband.
"Evidence suggests that a woman is 17 times more likely to face sexual violence from her husband than from others," Nundy said.
Addressing concerns over false cases and harassment of men, she said that "courts have consistently held that the possibility of misuse of any law is not a ground for setting it aside."
Finally, India's criminal justice system imposes strict penalties for putting forth false criminal complaints.
As the court hears the latest petitions in light of changing circumstances, India's federal government has filed a new affidavit, stating that it was adopting a "constructive approach" and was currently in the process of consulting numerous stakeholders on the issue.
The way forward
A major concern cited by opponents is that striking down the marital rape exemption will create a new offense but Nundy says it would simply result in extending "coverage of the statute to those formerly excluded," that is, "to married men who raped their wives."
The men protesting against the removal of this exemption are not worried about saving families; they are more interested in saving the patriarchal norms of society, Krishnan said. "Violence, against women and children, is the real threat to the family institution."
As the court hears arguments from petitioners against the criminalization of marital rape and waits for an official response from the government of India, many women see a flicker of hope.
"This move will democratize the institution of marriage. No institution can survive if it is based on the subordination of one party," Krishnan said.
But it is too early to judge whether striking down this exemption would lead to a more equitable distribution of power within marriages.
Edited by: Srinivas Mazumdaru
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