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We must revisit our notions of rape, marriage and sexual relations: Mihira Sood

IBNLive.com
Mar 06, 2013 at 06:59pm IST

Why is the government not willing to include marital rape in the new anti-rape Bill? Advocate Mihira Sood joined IBNLive readers for an interaction on the issue.

Q. Hi Mihira, Do you think that people will misuse the marital rape if it gets included in the Anti rape bill? Asked by: Shubham

We must revisit our notions of rape, marriage and sexual relations: Mihira Sood

Why is the government not willing to include marital rape in the new anti-rape Bill?

A. Hi Shubham, there is always the unfortunate possibility of misuse of laws, whether in respect of marital rape or intellectual property or insider trading or anything else. That's why we have trials and follow certain processes to weed out the false complaints from the genuine ones. However, the solution to that cannot be to decriminalise activities that are patently wrong. I also think that when it comes to laws that are designed specifically with women in mind, there is an exaggerated fear of misuse that is unfounded and very selective.

Q. We all know why the cowardly government doesn't want to include marital rape in the bill; the question is - what can be done about this blatant disregard for human rights? Apart from protest rallies, can, say, the JS Verma panel do anything further to keep the pressure on? This is getting ridiculous - what values is the govt worried about weakening - what values does a rapist have in the first place? The govt is just refusing to get to the root of the problem because problems are profitable for them. Asked by: Shakti

A. Fundamentally, this problem can only be addressed if we revisit our notions of rape and also of marriage and sexual relations. With rape, I think that process has begun, but marriage and personal laws are still seen as a politically/socially dangerous area to interfere with. To my mind, marital rape cannot logically be accepted as an offence even if the exception is deleted, unless marriage itself is seen as an equal partnership, across all religions and personal laws, and anomalous provisions like restitution of conjugal rights etc are deleted from the statute books. However, this will also necessitate rationalisation of divorce laws to include irretrievable breakdown of marriage and other changes, which many stakeholders are opposed to. I wouldn't categories it only as profitable; it's also a volatile issue, but I do think it must come to a head sooner or later.

Q. Do you think men and women are becoming more and more incompatible? With divorce rates shooting up rapidly; the fear of misuse of this law if enacted will bring down the family system more than ever before. Your thoughts please. Asked by: Debashish

A. In protecting rape, I'm not sure what family system is being sought to be protected. Rising divorce rates is something that has many implications beyond incompatibility - including the possibility that more women are opting to leave unhappy or abusive marriages and there is less stigma.

Q. Don't you think the government and us all are tunnel focused on making strict laws to cover up the aftermaths? Isn't it possible and would be good also if attention is awarded to improve the education and health level in our country? Asked by: Abhishek Yadav

A. I believe these problems are rooted in, and manifest themselves at several levels and therefore require interventions by a variety of experts at each of these levels. The debate about whether law should reflect society or lead it is an old one, and different situations require different approaches, but fundamentally I don't see why efforts at legal and social reform must compete with each other.

Q. Laws are for law abiding citizens..most rapes (crimes) are committed by those who are either unaware of a judicial system or have scant regard for the same..So? Whither new laws? Asked by: Kelly

A. By that logic, we wouldn't have laws punishing murder or theft or anything else. Laws have their place not just in defining the norms of acceptable behaviour but also in leading social change. Many legal reforms were ahead of their times inasmuch as they did not reflect the prevalent social mores of the times - such as sati, or equal voting rights for women - which are today indisputable. Rape too, is a violation of fundamental human rights that cannot be ignored by the State.

Q. Before implementing any law we should analyse the negative side so that it is not misused. do you agree? Asked by: sandesh

A. Yes, I agree that laws and procedures should always be designed in as comprehensive and foolproof a manner as possible. However, human society is such that criminal elements will always try to subvert the system and for that we have evolved certain norms of due process and fair trial. Fear of misuse is relevant, but if it allowed to be the overriding concern, then we will be losing our focus here.

Q. Laws can't prevent rapes as much as education and societal awareness can. Your comment. Asked by: Kelly

A. As I said earlier, both legal and social reform have a role to play, and must cooperate rather than compete. In fact, law too, can be used as a tool for social reform as it has done many times in the past. Particularly in a society as diverse as ours, with widely varying practices and degrees of emancipation, perhaps the law needs to take the lead. Justice delivery cannot after all, be held hostage to social change.

Q. Rape is rape, whether is marital or not. Why govt is hesitating to criminalize it. Asked by: Sarin

A. I agree with you. Venturing into the domain of marriage and personal laws (which this will necessarily involve, especially to safeguard against it being used as a negotiating tool in matrimonial proceedings)is a tricky business in India, both politically and socially. In my opinion, these problems are bound to arise when religion is allowed to play a role in public life as it has been here, and unless this is corrected, there will be very little real change.

Q. People talk about misuse of marital rape law...what they fail to understand that is that any law can be misused? Do they forget the stigma in India because of which so many women don't even come out to report the cases of sexual assault especially, rape? Asked by: Reema

A. I agree, the probability is low and should certainly not override the concern that such crimes are going unpunished. In my view the real concern is that in cases where matrimonial/maintenance disputes are pending, a false complaint can be used to negotiate harder. The only way to rectify this is to rationalise (and eventually streamline) matrimonial laws so that they are in line with modern thought on marriage and sexuality, and are fair to both men and women.

Q. To say all laws can be misused is not fair. The ease of misuse is far greater in an intimate relationship and it is alot easier to carefully engineer a testimony. We have seen the anti dowry laws destroy decent people. Asked by: Kunal

A. Just as the ease of misuse is easier in an intimate relationship, so is the difficulty to prove a case of rape in such a relationship. Does that mean rape in intimate relationships, or dowry demands shouldn't be punished? Anti dowry laws have also convicted a lot of guilty people and have empowered women to reject such demands.

Q. Hi Mihira, There are numerous instances of women misusing acts such as DV. Though as you said, courts and trials are there to weed out false complaints, the damage done to falsely implicated people and families is lifelong. So what can be done to ensure women dont misuse marital rape? also should such women who misuse be tried for criminal conspiracy? Asked by: Suhas Tadas

A. Ultimately, the solution must lie in faster trials. The worry with imposing a punishment for a false accusation is that any complaint that does not meet the standard of proof required can be termed false, which is not accurate or fair and will have the negative effect of discouraging women from coming forward and reporting abuse or violence. Crimes like rape are unique in that while intercourse can be proved, consent, or lack thereof are difficult to prove and unless women are encouraged to report them, genuine complaint will not even get a foot in the door.

Q. I think the govt. is unwilling because like all politicians it does play to the gallery.... I seriously can't think of what Indian tradition/ culture they want to uphold by not accepting marital rape as a crime. What do you think? Asked by: Reema

A. I agree, it is abhorrent. I suspect it is more a fear of interfering with marriage and personal laws at all, given the volatility of a subject like religion in India. But with changing notions of marriage, and varied forms of sexual and interpersonal relationships, this issue will have to be addressed and religious and collective rights will have to take a backseat in relation to individual rights and freedoms.

Q. Worries about misuse of marital rape laws is not the same as condoning marital rape. Women's groups should engage with people who have such fears instead of dismissing themselves as MCPs. Asked by: Saveer

A. I agree, there are some genuine concerns about marital rape being misused and these need to be addressed. The solution however cannot lie in allowing it to remain unpunished but should seek to rationalise areas of law where it can be misused, particularly in matrimonial proceedings. Any responsible rights group does engage with these concerns, even if it not always visible on social media and other fora.

Q. Misuse of laws such as the anti-dowry laws will be harmful for the feminist movement of India in the long run. Nothing can be achieved if there is an adversarial relationship with men. Concerns about misuse should be addressed so that we don't have wrong stereotypes being firmed about genuine complainants. Asked by: Surya

A. Yes, I agree that misusing laws designed to help women does a great disservice to the movement and laws must be rationally and fairly framed keeping in mind both the aspirational as well as the factual context.

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