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Dicey Legislation


BJP MP Sushil Modi has expressed concern that criminalising ‘marital rape’ would destroy the institution of marriage. This is the worry of conservative elements who believe marriage is a sacred bond. It reflects the difficulties faced by lawmakers while contemplating legislation on the issue. Then, there are those that believe marriage is some kind of a constant power struggle between partners based on rights and obligations. There are already laws that, in the name of empowering the ‘weaker’ partner, are premised on an assumption of the man’s guilt till proven innocent. Even so, harassment and violence for dowry, as well as other types of domestic violence, do offer justification for such proactive steps. At the same time, there is no doubt that there are increasingly cases when a simple breakdown of the marriage is transformed into a criminal case, often at the prompting of lawyers, for the sake of extracting monetary compensation.

This has led to an enhanced reluctance among men in particular sections of society most affected by this phenomenon to avoid marriage. With the increase in the number of live-in relationships and their social acceptability, it will lead to the kind of situation that exists in a country like the US, where the number of mothers who have never been married is 34 percent of the total, and 80 percent of single parents are mothers. This is due to the decline in the institution of marriage as a long term, responsible and caring institution. Is that the direction India wishes to go?

Laws can’t impose excessive stress, even paranoia among men. The somewhat extreme feminists portray the gender as naturally violent and predatory. How will, for instance, a woman prove marital rape, and a man disprove it? Will every coming together be preceded with the man obtaining a signature on a consent form? Or, will CCTVs be installed in bedrooms (and other preferred spots) for safety’s sake? Will witnesses be required? What would such concerns do to sundry matters as romance and spontaneity? What would the constant fear of entrapment do to a man’s libido?

Of course, among the sections of society most affected in India, market forces will also kick in. With ‘independent’ and ‘assertive’ women scaring away suitable grooms, the ‘demand’ will increase for more ‘homely’ girls, which had gone down as they were usually not ‘career’ oriented. What kind of society will emerge from this schism in the next couple of decades needs to be considered. Too many children will become the products of sperm donations received by single women, and surrogacy sought by men – not because of humane considerations or biological compulsion, but selfish and deliberate choices. It would be wise, therefore, to tread carefully, as the impact will be long-term and not entirely predictable. Perhaps it would be better to classify this as part of the ‘domestic violence’ charge, as such disregard for the woman’s feelings can only come from a larger negative environment.