When the constitutionality of certain legislations or provisions are challenged in the Court, the Union of India’s opinion is sought on the matter. It does not mean that the Court would decide according to government’s position (which is why BJP Media cell chief Amit Malviya’s attempt to etch Modi’s name in history books as ‘women rights champion’ is laughable to say the least), but government’s position influences the decision to some extent. So it is important to critically examine what stand the government takes in each issue in order to understand the larger scheme of things in store for the citizens.
The Modi led BJP government’s position in some of the recent matters before Honorable Supreme Court namely, de-criminalization of homosexuality, right to privacy, ban on Triple Talaq and criminalization of marital rape, collectively paints a picture that should worry every Indian woman. Far from being champion of women’s rights, Modi government is hypocritical, and systematically attacking women’s autonomy.
In the matter of Triple Talaq, the central government filed a twenty nine page long affidavit containing such well-articulated arguments for gender justice and women’s right that they alone could be used to criminalize marital rape. Here are some of the words and phrases used by government:
‘Status and dignity of Muslim women’, ‘contemporary constitutional morality’, ‘principles of gender equality.’ The government stated that the “Fundamental question is whether in a secular democracy religion can be a reason to deny equal status and dignity available to women under constitution of India.” They invoked the right to equality guaranteed Art 14 and right to life guaranteed under Art 21 of the Constitution and submitted that “right of a woman to human dignity, social esteem and self-worth are important facets of right to life.”
Comparing the above to the three page written submission in the ongoing marital rape petition (RIT Foundation vs. Union of India) it becomes obvious that government has conveniently cherry picked its concerns for women, treating lives of Muslim women as a site to establish Hindu supremacy while completely dismissing the concerns of women in general while addressing equality in marriage.
It is remarkable how the same government drafted the written submission in marital rape case which is not only half-hearted, badly drafted and illogical but also misogynist and demeaning to women. None of the beautiful concept of gender justice elaborated and rallied for in the TT affidavit finds mention in the WS. Here is a paragraph wise understanding of the government’s position and the counter argument from women’s perspective.
What constitutes Marital Rape is not a relevant question?
Paragraph one tries to raise the question “what constitutes marital rape” by making a distinction between rape and a non-existent concept of ‘non-rape’.
The said question is irrelevant because the petitioners neither seek to invent a new concept of ‘marital rape’ nor do they seek to bring a new law. All that the petition seeks is to declare the Exception to Section 375 of Indian Penal Code (IPC) as unconstitutional being violative of Art 14 (Right to equality). Section 375 defines what constitutes rape, and the Exception provides an exemption to the husband. Simply put, even though the husband’s actions would constitute rape in general, if those are committed upon a wife of age 16 and upward, he will get an exemption, by virtue of being husband.
The assumption, that a married woman’s consent to sexual act with her husband is not relevant, is a gross violation of women’s bodily integrity, but government did not even deliberate upon the issue in the affidavit. Women are not even the subject of the submission, instead the institution of marriage and husbands are the main subject matters.
Why government wants to protect an unequal institution of marriage?
Paragraph 2 of the Submission mentions destabilization of institution of marriage, misuse of section 498A and harassment of husband all in the same breathe leaving no scope of doubt that government’s objective is to serve the interest of patriarchy, which shouldn’t surprise anybody given the RSS ideologies behind this government.
The institution of marriage government is so keen to protect is an unequal institution based on gender hierarchy and sexual division of labour. Greed, violence, unequal power relations, caste supremacy, showoff, family honor are some of the factors that work behind how marriages are arranged in India. We raise our daughters in a gender segregated society, sending them to girls school, girls college, prohibiting them from talking to boys, and suddenly one day she is married off to a stranger who is allowed to penetrate her against her will, and get exempted from rape laws, just because he is the husband. Young women have no knowledge of sex, no articulation or understanding of their sexual pleasure and preferences and yet they are expected to obedient to their husband’s sexual needs. On the other hand boys are raised with ideas that women are shy, their ‘no’ actually means ‘yes’, they like macho men and being macho is all about power, force, domination. Add to this the fact that most Indian women are financially depended on husbands for basic survival, and marital rape becomes a reality in every other bedroom.
There are enough surveys and studies to prove that patriarchal (where the eldest male member is the authoritative head of the family) patrilocal (where the newly wed woman is dislocated from her surroundings and brought into a new family, her wedding not being the beginning of her own home, but a test of how well she can adjust to an existing family; patrilineal (where property and family name is carried by sons and not daughters) marriages and family system are the greatest site of violence for women. Yet government is only keen on protecting it without even considering the questions of women’s rights.
Treating woman equal in marriage will not destabilize but make institution of marriage more evolved
Laws such as Section 498A or Domestic Violence Act, barring few misuses, are meant to give women equal position in marriage. ‘Equality’ will not destabilize the institution, rather improve it. With time, both men and women would be wary of getting married for all the wrong reasons – dowry, pay package, social status, domestic work – and focus on what is important, love and compatibility, both physical and sexual. As a society we’d make better mature matrimonial choices. People would meet, spend time, live in to ensure they are emotionally and sexually compatible and then marry.
In paragraph 3, government mentions the problem of establishing evidence; paragraph 4 is about technicalities; paragraph 5 is about concerns for the attitudes (presumably regressive) of prosecutors, police officers and society in general; paragraph 6 is an advice against “blindly” following the equality practiced by western societies and the last paragraph raises the need to involve state as party to the matter. Nowhere in the three page submission did the government even mention woman or their rights.
It should be noted that in the Triple Talaq affidavit, government enthusiastically wanted to abide by India’s duty to adhere to international covenants including The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the present affidavit doesn’t mention CEDAW or any other international covenants for that matter.
In July 2014 the CEDAW committee in its Concluding observations on the combined fourth and fifth periodic reports of India expressed concerns over India’s failure to eliminate all discriminations. The committee urged India to:
(a) To implement the recommendations of the Justice Verma Committee regarding violence against women;
(b) To amend the Criminal Law (Amendment) Act, ensuring that marital rape is defined as a criminal offence, as requested by the Committee in its previous concluding observations.
It should be further noted that in Triple Talaq affidavit, government went at great lengths citing what international practice is and which countries had outlawed Triple Talaq, while in case of Marital Rape, government cautioned us against bindly following equal western society. Government wants us to stay regressive on the ground of being poor and illiterate.
Dr Sanjukta Basu 
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