Social media is abuzz with a crucial debate that will question the institution of marriage going forward. The Delhi High Court is currently hearing (on a daily basis) a public interest litigation (PIL) by NGOs RIT Foundation and All India Democratic Women’s Association (AIDWA) seeking to strike down the exception granted to husbands under the Indian rape law.
Petitioners
The petitioners have challenged the constitutionality of the Indian Penal Code (IPC) under Section 375 (rape) on the grounds that it discriminated against married women being sexually assaulted by their husbands.
Defendants
The Union government under PM Narendra Modi has maintained a stance that marital rape cannot be made a criminal offence as it could become a phenomenon that may destabilise the institution of marriage and an easy tool for harassing the husbands.
The Delhi government under Arvind Kejriwal responded to the current petition stating that marital rape is a “crime of cruelty” and was covered under the IPC.
Amit Lakhani and Ritwik Bisaria who represent Men Welfare Trust (Delhi) have listed several examples how countries cited as examples by Petitioners – that criminalise Marital Rape – have Gender Neutral Laws. The duo have also maintained that women in India have enough laws presently, namely under Section 498-A (Cruelty to Wives By Husband or any of his relatives) and the Protection of Women from Domestic Violence Act 2005 (PWDVA) which empowers them to break free from an abusive marriage.
Triple Talaq Bill 2017
“Triple talaq”, as it’s known, allows a husband to divorce his wife by repeating the word “talaq” (divorce) three times in any form, including email or text message. The Supreme Court declared the practice unconstitutional in 2017.
The Triple Talaq bill was first tabled in 2017 but stalled in the upper house of parliament, where some opposition MPs called it unfair. According to the bill, Men found in breach of the new law would be jailed for up to three years.
Ruling Bharatiya Janata Party (BJP) supported the bill, while the main opposition Indian National Congress (INC) party opposed it vehemently.
In July 2019, the bill was passed by 99 votes to 84 after a number of walkouts and abstentions.
Now, lets come to all the arguments given between 2017 to 2019, where staunch women rights activists had strongly opposed criminalisation of Triple Talaq. One may argue how it may be unfair to compare Triple Talaq to Marital Rape, however, it is important to understand the submissions put forth then, which recommended why criminalising a matrimonial law would serve no justice to anyone.
Opposed by Indian National Congress
On Sunday, Former Congress President and present Wayanad MP, Rahul Gandhi tweeted in favour of criminalisation of Marital Rape law. While his tweet was cheered and supported by feminists, journalists and usual left leaning extremists, his own party state heads did not retweet or support the suggestion. Key Next Gen leaders such Sachin Pilot (Rajasthan), Deepinder Hooda (Haryana) or even Navjot Singh Sidhu, the current Pradesh Congress Committee (PCC) head in Punjab did not retweet or comment on the same.
Infact, in 2013, just after the horrific Nirbhaya gang rape incident, it was the UPA-II under Dr Manmohan Singh government that had rejected the recommendation of Justice Verma Committee, to make Marital Rape as an offence.
While Congress now strongly recommends criminalisation a matrimonial law, their stand on Criminalisation of Triple Talaq was completely different though, almost seeming to be being anti-women.
The then Congress MP, Sushmita Dev (also All India Mahila Congress Chairperson- AIMC) had strongly argued against making triple talaq a criminal offence. In fact on a lighter note, Dev sounded much like the Men’s Rights Activist, who pointed out how a police complaint in a marriage, would leave no scope for reconciliation and mean the end of that union. She quoted:
A matter like divorce, which is generally in the domain of civil jurisdiction, has been brought under criminal jurisdiction. I talk from common sense and not my legal knowledge that is it possible that after I go to magistrate in a non-bailable offence, when my husband is going to be arrested, are you saying that he will sit in a reconcilable position?
Is it possible? Do you think that married couple will come back to live with each other?
Dev compared 3-years imprisonment in Triple Talaq to other heinous crimes in the IPC, calling the punishment very harsh for husbands. Former AIMC head also questioned if a husband was sent to jail, would the government pay maintenance to his wife during that period. She ended her Lok Sabha speech by quoting,
Modi government is not agreeing to legislate Marital Rape law due to its anticipated misuse. I want to ask whether Triple Talaq bill will not be misused against Muslim Men in the name of Protecting Muslim Women.
WATCH VIDEO:
Congress MP Sushmita Dev Opposing Criminalization Of Triple Talaq | We Question What About 498A?
Karuna Nundy, Petitoner in Marital Rape PIL, Opposed Criminalisation of Triple Talaq Bill
During one of the Triple Talaq debates on a Bloomberg-Quint show in 2017, Karuna Nundy, who is one of the main petitioners demanding criminalisation of Marital Rape, said that criminalising instant Triple Talaq was against free speech. She then quoted,
Husband and wife having a fight, may walk out and walk in. Why is it that when these words are uttered in one language it is an offence, and in other language it is not. The deepest hypocrisy is that Modi government has no interest in Hindu women’s rights.
According to current government, (marital) rape should be allowed in a marriage. They (BJP) have made Triple Talaq cognizable and non-bailable, Congress is not taking clear position. The criminality of this offence is ridiculous.
WATCH VIDEO:
Marital Rape PIL Petitioner Karuna Nundy Opposed Criminalization Of Triple Talaq Bill
Flavia Agnes, Women Rights Lawyer, Opposed Criminalisation of Triple Talaq Bill
Speaking with Frontline magazine in 2017, Flavia Agnes shared her views why criminalising Triple Talaq would be a big NO NO. She then quoted:
Criminalisation never works. Section 498-A (cruelty to wife) of the IPC came in 1983. The criminal law that dealt with rape was also amended that year. In spite of stringent laws, rape, dowry harassment and cruelty to wife have not stopped.
When Nirbhaya (2012) happened, they said existing law was not enough and we needed more stringent punishment. They even asked for a minor to be hanged. There is already Protection of Women from Domestic Violence Act 2005 (PWDVA) which needs to be used properly and perhaps strengthened.
In this case (TT), after their initial arrest, husband will get bail, and the case will go on for years. What will the next demand be – instant justice by public flogging? Then they will say Muslim law has a provision or some Muslim country has it, so we should also have it. Is that a justification. That some other country has it so we should also have it? Even death penalty has not acted as a deterrent. Why would this?
Men’s Day Out must inform it readers that citation of several other countries criminalising Marital Rape is a key argument in the current PIL at Delhi High Court.
Tweeting about this earlier Flavia Agnes interview, Amit Deshpande from Vaastav Foundation, questioned,
Criminalisation never works, says feminist Flavia Agnes This was during triple talaq law being passed. Proof that feminists in nature are Marxists more than feminists. They’ll twist arguments to suit leftist agenda but never really were bothered abt women #MaritalRapeLawIsAntiMen
Left Leaning Media Portals Opposed Triple Talaq Bill
The Wire published an authored article in 2017 with a headline, “Why Criminalising Triple Talaq is Unnecessary Overkill”. “Can triple talaq, at best a civil wrong, come under the purview of criminal law?”
The article expressed in detail,
Criminal sanction is the most coercive method of regulating an individual’s behaviour which a state may deploy. But few in India understand that criminal law’s promise as an instrument of safety is matched only by its power to destroy.
‘Crime’ has always been regarded as a ‘moral wrong’ and criminal conduct demands social retribution. It is a different story that what has been moral and legal for centuries, the state can overnight, exercising its sovereign powers, make illegal. Criminal law and morality, therefore, are not co-extensive.
Polygamy was permissible for centuries under Hindu law but then the newly independent Indian state, adopting western culture, in spite of the Hindu right’s opposition, decided to make it a crime. A similar decision was made about dowry.
No co-relation between crime and punishment
The article in The Wire also suggested that a number of Supreme Court judgments are not complied with on a regular basis both by the Central as well as state governments. Moreover, the belief and expectation that the mere fact that if some wrongful conduct becomes a crime, people will resist from indulging in it too is erroneous and has not been proved by any authentic empirical research. As a matter of fact there is no relationship between the incidence of crimes and punishment.
Even death penalty is not an effective deterrent. Murder, rape, robbery etc. since antiquity are major crimes with heavy punishments but their rate has only been going up.
The author gave an example of how more stringent laws after Nirbhaya did not succeed in bringing down rate of rapes or other sex crimes. The article read,
After the December 16 Delhi gang rape we made our law far more stringent in terms of broader definitions of crimes against women and enhancement of punishments but these changes have not succeeded in bringing down the rate of rapes and other sex crimes.
In the last decade, 2.24 million crimes against women were reported, with a rate of 26 crimes per hour. Cruelty by husbands is a major crime, yet in the last ten years as many as 909,713 such cases were registered which translates into ten cases per hour. Similarly every hour, five women are assaulted with the intent to outrage their modesty, three are kidnapped/abducted and three are raped.
Cases of triple talaq are rare and the practice is already on its way out. Moreover, since triple talaq no longer dissolves marriage, its pronouncement is inconsequential and in no way adversely affects either the wife or the society and therefore it cannot and should not become a crime.
By making triple talaq a penal offence, the Modi government is in fact accepting the view of the conservative Ulema, who had taken the position that while triple talaq validly dissolves marriage in accordance with decision of second caliph Omar, the person making three instant pronouncements is liable to punishment.
The article also pointed out,
Are we going to save marriages or try to break them through this new law? At best, triple talaq may be treated as a civil wrong. If we really want to send people to jail for giving triple talaq, this too is possible under civil law. Our lawmakers should know that even in civil cases one may get imprisoned.
The Leaflet, (co-founder Indira Jaisingh – Human Rights Lawyer) had also published an article titled “Stop The Criminalisation of Triple Talaq: Bebaak Collective” in March 2019. The article was about a letter written by some Muslim women opposing the Triple Talaq bill. It quoted:
We are writing on behalf of Muslim women from across the country and women’s groups to oppose this Bill, which is arbitrary, excessive, and violative of fundamental rights enshrined in the Indian Constitution. Overall, if this Bill is passed it would make Muslim women more vulnerable to violence, as well as harm their economic, household and social security.
On Criminalisation of Triple Talaq
Criminalising the husband would also lead to unwanted separation between the couple, against the wishes of the wife.
Since Muslim marriage is a civil contract between two adult persons, the procedures to be followed on its breakdown should also be of civil nature. Penal action to discourage the practice of instant triple talaq is a myopic view as it leaves many other issues of economic and social security of women unaddressed.
Penal provisions in the Bill will make Muslim women more vulnerable to violence from their matrimonial household, as the marital family members would be hostile and blame the woman for the husband being in jail. It would hinder her household security, and she might be thrown out of her matrimonial household.
The pronouncement of triple talaq having no legal consequences on the marriage means that such a proclamation by a Muslim man is essentially a desertion of the wife. In any Personal Law, the desertion of a wife by a man is not a criminal offence. Therefore, while the Bill aims to criminalise the pronouncement of talaq, in effect it is only criminalising the act of desertion of a Muslim wife by her husband. Criminalising desertion by Muslim men, which constitutes only a civil offence for men of all other religions, is discriminatory under the Constitution.
Women Have Recourse Under Domestic Violence Act & Section 498-A
The article pointed out existing provisions under the law avaiable to women as recourse in an abusive or failed marriage. It read:
If there is violence within the marriage in addition to the pronouncement of triple talaq, then the woman could use the existing provisions of the Protection of Women from Domestic Violence Act, 2005 and Section 498A of the Indian Penal Code. The Domestic Violence Act presents women with civil redressal with its focus on availing monetary relief, custody, residence and protection orders, whereas Section 498A presents women with the option of prosecution and imprisonment.
Bebaak Collective (Voices of the Fearless) was a campaign group primarily functioning from Mumbai.
Raghav Awasthi – Petitioner in Marital Rape PIL
Raghav Awasthi is one of the petitioners in Marital Rape Law in favour of criminalisation of the same. Do watch his views on the challenges and misuse of existing Section 498-A of the IPC, during his exclusive interview with Men’s Day Out last month.
WATCH VIDEO –
Section 498-A Challenges | Discussion With Raghav Awasthi
MDO Take:
One must note that none of the matrimonial laws in India are gender neutral – which means a husband cannot file cruelty against his wife or her family; a husband cannot file a domestic violence case against his wife. According to all feminists, a wife is always the victim and the husband is always the perpetrator
When we look at NCRB data for convictions under Section 498-A (Cruelty & Dowry), over the years the same has been ranging between 15-20% only and the rest 80% are acquitted. This means, 80% of the families (of husbands), who are dragged to court falsely by their disgruntled wives, end up spending huge amount of money to fight these cases for several years in court, while there is no punishment or conviction for the wife who files a false case. Infact, there have been cases where Supreme Court has asked the husband to settle with alimony and in return ordered the wife to drop all charges (including criminal cases) against the man and his family.
Despite such draconian practices against the Men in 2022, women rights activists are pushing for one more criminal law that may not be used to send a husband to jail, but be misused to a great extent to threaten him and pressurise him to settle with Alimony/Property. The entire premise will be rested upon whether a wife consented to sex or not. The sole testimony will be word of the wife in all such cases.
If the husband does not throw out his old parents, Marital Rape law may come to a wife’s rescue. If the husband does not transfer property in his wife’s name, Marital Rape law may come to a wife’s rescue. If a wife is caught in adultery and the husband dares to file for divorce, Marital Rape law may come to a wife’s rescue. These are scenarios currently prevailing with the rampant misuse of Anti-Dowry law under Section 498-A.
We do not say that every woman files a false case, while all husbands are holier than thou. However, it is not about Rights For Women solely, it is about balancing Equal Laws for both Genders so that we maintain an equilibrium for a healthy society.
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ALSO WATCH –
Late Ram Jethmalani On Marital Rape Law
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