MARITAL RAPE VERSUS SAMBHOG
By Brigadier Chitranjan Sawant,VSM
The Vedic Dharm enjoins on all Aryas who wish to tie the nuptial knot to do so by going through the ritual of Vedic Vivah .The culminating point of a Vedic wedding is the Saptpadi – wherein the bride and the groom, after performing Havan and doing four perambulation take SEVEN steps jointly and take vows to look after each other in all conceivable ways, have Sambhog ( sex wherein both are equal participants of their own volition) with the aim of procreation. The seventh and final step is taken wherein both affirm that they will be SAKHAS or equal friendly partners in life.
The concept of exercising conjugal rights is solely based on procreation or having children to carry forward the human race. The lawfully wedded couple, willingly and voluntarily enjoy coitus or sex for giving birth to children and not for having fun or indulging in a sexual act for mere pleasure.
Maharishi Dayanand Saraswati, a great socio-religious reformer of the nineteenth century India emphasized on complete compatibility between husband and wife leading to full satisfaction of both. The great seer wrote in his treatise Satyarth Prakash:
“ Happiness, prosperity and grace reside in that family where the husband
Is satisfied with the wife and the wife with the husband….The age-0ld
Swayamvara is the best form of marriage. When men and women wish
To marry, there should be compatibility of learning, temper, manners
Age, health, family and physique. No marriage is happy without
Harmony.” ( translation by Pt Ganga Prasad Upadhyay)
Harmony is the hallmark of a satisfying cohabitation. Indeed harmony precludes rape of all sorts.
The consent of both the husband and the wife in having sex for progeny is a sine qua non. The element of compulsion, force or use of violence cannot coexist with Marital Love. Where Marital Love reigns supreme the question of Marital Rape just does not arise. No wonder the words marital rape do not exist in the dictionary of Aryas who are devout Vedic Dharmis. The concept of marital rape is alien to the thought process of Hindus whose original source of Dharma is the divine knowledge called the VEDAS.
One may ask what is marital rape? In simple words it is rape committed by the person to whom the victim is married. Frankly speaking the words marriage and rape do not go together. It is a contradiction in terms. The very concept is un-Indian. It was not prevalent even in the European society until the Women’s Liberation movement gave birth to the new fangled term, marital rape.
Sir Mathew Hale, Chief Justice in England in 1600s wrote in a judgement that he delivered in a rape case, “ The husband cannot be held guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.” However, the English law underwent a change in 1991 when under the pressure of rising marital discord, marital rape was made punishable. Marital harmony had made an exit.
Let us take a look at the legal aspect of marital rape in India. To start with it must be stated that it is not punishable under law of the land and is not likely to be made punishable as both the public opinion and the eminent legal luminaries, but for an odd dissenting voice, do not favour bringing in legislation to make marital rape a criminal offence. The logic put forward by the Law Commission in 2013 was that the concept of marital rape goes against the grain of Indian Thought and our social conditions.
The Indian Penal Code, 1860, as amended up to date, defines Rape as having carnal knowledge of a woman without her consent or when consent was obtained by dubious means. However, a husband could not be held guilty of rape when he had coitus with his lawfully wedded wife provided she was above 15 years of age. Thus under the Indian Law the western concept of marital rape has been junked. Among the Hindus, Marriage is a sacrament and as such sacrosanct. Marital sex is for Procreation. It is not rape.
Islam does not recognize the concept of Marital Rape. Zina is the word used in Shariah to describe extra-marital or pre-marital sex and is indeed punishable. However, there is no Marital Zina or Rape.
It may, however, be mentioned that there can be illegal intercourse when a wife is menstruating. If a husband desires to have sex with is lawfully wedded wife when she is observing Obligatory Fast, the said intercourse will be called illegal. It does fall short of what the new concept of marital rape is. Likewise a husband demanding sex of his wife when she is ill and it may cause harm to her, the said act of sex is also illegal.
It must be understood that in the Muslim Law, it is the right of a husband to demand of his wife sex and have it. Prophet Muhammad, PBUH, had said,
“If a man calls his wife to his bed, and she refuses to come, the angels curse
Her until morning comes.”
WOMEN’S CALL FOR JUSTICE
It has been argued by feminists that notwithstanding high profile of a wedding being a sacrament and bonding love in marital relationships, there are numerous episodes of discord between the husband and wife. When marital relations sour and the wedding vows are thrown to the wind, what is the course of action open to the aggrieved party? Well, looking at our society today, we do find that either a wife or a husband files a petition for divorce under the Hindu Marriage Act 1955 and quite a few times a decree of divorce is granted. Indeed a Muslim male gets away by pronouncing Triple Talaq and the divorced wife is left high and dry. Our society is still groping in the dark on the issue of triple talaq.
Violence in marital life is a burning issue today in some sections of the Hindu society, not leaving other religious groups out. Has the wife, beaten blue, no recourse to law or a social remedy? Well there is a piece of legislation called Protection of Women from Domestic Violence Act,2005 which enables aggrieved wives to take recourse to civil remedies. They may seek this remedy against sexual abuse too. But the process is a long drawn one and frightens women from knocking at the door of a court of law.
Some legal eagles advise to seek remedy under section 354 IPC that punishes “ assault or criminal force to a woman with intent to outrage her modesty”. This avenue has yet to be fully explored. Feminist leaders do not wish to dilute their assault by taking this route lest their firepower is weakened and the cause of Marital Rape takes a back seat. However, if a criminal minded husband sodomises his wife, she will be free to take recourse to section 377 IPC that penalizes carnal intercourse against the order of Nature. They may, however, run against their own kin of the Liberal movement who seek a repeal of this provision. Thus we are back to square One.
Taking pros and cons of this grave issue into consideration, it can be safely surmised that the Indian society, as of now, is not willing to go with the Feminists Brigade and issue a call for making Marital Rape a criminal offence.
SAMBHOG where a husband and his wife are equal and willing partners in coitus with the aim of having bright children to carry the Torch of Knowledge forward, is the sole solution to the burning problem.
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