Treating a rape as less consequential if the victim agrees to marry the perpetrator has no place in contemporary society but to call it "patriarchal" is downright silly.
Koenraad Elst (°Leuven 1959) distinguished himself early on as eager to learn and to dissent. After a few hippie years, he studied at the KU Leuven, obtaining MA degrees in Sinology, Indology and Philosophy. After a research stay at Benares Hindu University, he did original fieldwork for a doctorate on Hindu nationalism, which he obtained magna cum laude in 1998. As an independent researcher, he earned laurels and ostracism with his findings on hot items like Islam, multiculturalism and the secular state, the roots of Indo-European, the Ayodhya temple/mosque dispute and Mahatma Gandhi's legacy. He also published on the interface of religion and politics, correlative cosmologies, the dark side of Buddhism, the reinvention of Hinduism, technical points of Indian and Chinese philosophies, various language policy issues, Maoism, the renewed relevance of Confucius in conservatism, the increasing Asian stamp on integrating world civilization, direct democracy, the defence of threatened freedoms, and the Belgian question. Regarding religion, he combines human sympathy with substantive skepticism.
Recently, a lady friend protested against a judicial verdict in a case where a Muslim man had raped a Hindu girl, who as a consequence gave birth to a child. A judge okayed a “solution”, viz. that he marry her. We won’t discuss the particular case, but the very principle of treating a rape as less consequential if the victim agrees to marry the perpetrator.
The lady had counselled us not to “communalize” the issue, since it happens as well in cases where only Muslims or only Hindus are involved. True, but in the present case there just happens to be a communal angle, in that the Prophet explicitly condoned rape of non-Muslim hostages after caravan raids, and practised rape himself by forcing Raihana into his harem, a Jewish lady whose husband and male relatives he had just killed. This established the principle that according to Islamic law, non-Muslim women are up for grabs. To be sure, in many earlier societies, this was also the relation between upper classes and despised classes, and that is precisely the point Islamic law intends to make: Muslims are the upper class, unbelievers must be subservient to them, including giving access to their women. However, while this communal angle is really there, it is not our concern here.
She alleged that the judge’s leniency towards rape if followed by marriage, is “patriarchal”. She could have called it unjust, she could have called it a refusal to apply the law, she could have called it a dereliction of duty by the judiciary, but she chose to call it something deemed worse nowadays, viz. “patriarchal”.
Lately I notice that many Hindus who really mean to serve the Hindu cause, many of whom are indeed labelled “Hindu fanatics” by their secularist colleagues, have taken to using this concept. In August 2017, a Swarajya article about the proper Hindu reaction to the galloping Muslim demography (with a Kerala Muslim community of 26% having 42% of the new births) warned that Hindus should not think of forcing their wives to have more children, as that would be “patriarchal”. It would turn the women into “breeding machines”, the approved progressive term for “mother”.
This was not just a terminological problem: it bought into the whole presupposition that women are being instrumentalized and that they have no agency themselves, and certainly no “communal” agency, in wanting to counter the Muslim demographic offensive. Apparently women can’t want anything, certainly not survival for their community. They are, so the progressive presupposition (swallowed by Hindutva camp-followers) goes, naturally selfish and short-sighted, unable to see beyond their individual self-interest, which fortunately is championed by the Cultural Marxists against their next of kin.
A week earlier I had attended a Mahabharata conference in Delhi, with many traditionalists participating, where a young lady gave a paper about the epic’s heroine Draupadi. She had been through the mill of liberal indoctrination, so her paper was full of American feminist buzz-words, starring “patriarchy” and “empowerment”. In her version, Draupadi’s main competition was her own male relatives, not their enemy; she was not in solidarity with them.
There exists a much wiser and more rooted Indian women’s advocacy movement, pioneered by Madhu Kishwar’s paper Manushi, one area where India can teach the world, not in the past but today. Unfortunately, meanwhile the American conflict-oriented (at heart Cultural-Marxist) variety is gaining ground. I don’t expect any Hindu revival to go very far if Hindus keep on swallowing the enemy’s narratives like this.
But let all of that pass for now. No matter what terminology and hence what conceptual framework we use in order to make sense of this practice of marriage-after-rape, we all agree that there is something not quite right with it. Or to use more Social-“Science” jargon: it should be “problematized”.
Many cultures that knew the institution of marriage, and that considered rape as a punishable offence (whether out of respect for the woman’s violated autonomy or for her male guardian’s violated “property”), showed themselves lenient if the woman came forward agreeing to marry the man standing trial. In medieval Europe, it was the done thing. Many cases are known of men standing trial for rape and being saved from punishment by his victim offering to marry him.
As I write this, I receive an e-mail from the liberal advocacy forum Awaaz calling for solidarity with a girl called Lubna, a rape victim in the Arab world forced to marry her rapist. But then, I learn that Jordan has just outlawed the practice (2017), and that Egypt and Tunisia have also done this in recent years. In other Muslim countries, the practice persists, and in India since Jawaharlal Nehru, Personal Law tries to provide its Muslims with a Muslim environment (Shari’a except if explicitly overruled), as exemplified by the recent verdict discussed here.
In the more backward parts of Europe, the practice was also known until recently. It is important to realize the occurrence of this practice outside of India, for secularists and Christian missionaries have a way of attacking “typically Hindu” customs that turn out to be, or to have been, pretty universal.
Thus, Franca Viola (°1948), a farmer’s daughter from rural Alcamo in Sicily, got engaged with Filippo Melodia, nephew of a rich mafia don, with her parents’ assent. Shortly after, he was arrested for theft and mafia membership, and because of this, Franca’s father called off the engagement. Her family got threatened but persisted. At 17, Franca was abducted and raped by her rejected fiancé. Her father was contacted by Filippo’s family for a meeting to settle the matter, namely with a “reparation marriage”, to “repair” her and her family’s honour. In 1965, Italy still had its article 544 of the Penal Code, which turned rape into mere premarital sex, frowned upon but not punishable, and even annulled an earlier conviction for this rape, if a marriage between perpetrator and victim ensued.
Thanks to the coordinates for the meeting, he could send in the police, have her liberated and her abductors arrested. In the court case against Melodia, the defence tried to portray the abduction as voluntary on the girl’s part. This so-called fuitina, “escape”, was the usual scenario in love marriages not wanted by the girl’s family. The girl presented her father with an accomplished fact: first violating the family’s honour, then restoring it through marriage. But the fuitina defence did not help: Melodia was imprisoned for ten years.
(data borrowed from Philip Roose: “Franca Viola en de afschaffing van het ‘herstelhuwelijk’ in Italië”, Doorbraak, 3 August 2017)
The trial and its outcome gave a boost to the legal recognition of women’s rights. In 1981, article 544 was abolished. In 1996, rape was redefined as a violation of personal integrity, no longer as a violation of public morality or family honour. In my own country, Belgium, this change took place in 1989, not very long ago either. That Jordan abolished the “reparation marriage” only in 2017, and that Tunisia outlawed all violence against women in the same year, is hardly proof of being “backward” when we consider how recent these developments are in Europe. Which is not to deny that India, backward or not, had better catch up with these developments.
Global human culture
What missionaries and other so-called secularists attack in Hinduism, is usually an attack of something brought forth by mankind and now (or within living memory) only surviving in Hinduism. Thus, to culpabilize Hinduism, they berate Sati (a widow’s self-immolation on her husband’s funeral pyre), a very minoritarian practice among ancient Hindus, now non-existent. It was limited to the warrior castes, and counselled against already in the Rg-Veda, where the very first mention of the practice is where a widow intends to commit it but gets dissuaded. On the other hand, it has been attested among the aristocracy of the ancient Chinese, Mongols, Egyptians, Celts and Scandinavians. Contrary to the feminist analysis, it was not a measure of the contempt in which women were held: among the Greeks, women had a lowly status and had no “honour” to defend by committing Sati, whereas among the Celts, where women had a higher status, there was plenty of Sati.
The secularists attack the Purusha Sukta (Hymn of the Man), the late-Vedic foundation stone of social differentiation ultimately yielding the caste system, as if similar myths did not exist in China, in Rome, in Scandinavia, and indeed in the New Testament. There, Saint Paul likens the social classes to body parts, unequal but condemned to cooperate. This became the basis of the Social Teachings of the Catholic Church, better known as corporatism, i.e. “body-like worldview”. The Church has always defended a layered society with inequality against the rising tide of socialism and egalitarianism. (This does not only count for the Catholic Church of the 19th-20th century, but also for Martin Luther’s opposition against the German peasants’ rebellion, Russian Orthodoxy’s support for serfdom, the Southern Baptist support to slavery in the US, or the Afrikaner Calvinists’ support to Apartheid.)
When the missionaries are taking Hindus by the nose and pointing it towards the “social evils of Hindu society”, they are cleverly pointing it away from the skeletons in the cupboard of Christian society. So, contrary to secularist-cum-missionary designs, Hindus need not be village bumpkins only aware of their own traditions. The knowledge of foreign traditions will go a long way in relativizing any “evils of Hindu society”, even if real.
Meanwhile, it is incontestably true that the Hindus’ own legal tradition, as laid down in the Dharma Shastras, does equally contain the recognition of marriage consequent on rape. Dharma Shastra is a field in its own right, and proper experts can say a lot more about it, but let us already point to a general fact of consequence to our topic.
Pishacha Vivaha (Piśāca Vivāha)
The Dharma Shastras recognize a series of different marriage forms, usually eight. These are all legally binding and confer a number of enforceable rights and duties, but they are not equal.
On top of the list are several forms of arranged marriage, where both families involved are in consensus. To the moderns’ objection about the marriage partners’ feelings, let us briefly say that a start with neutral feelings (often between youngsters who had never met) means that it can only get better, especially with the bond conferred by common children. Among older Hindus, the near-consensus is that arranged marriage is the better option, whereas love marriages start with intense feelings which tend to diminish, mostly slowly but sometimes dramatically. They begin romantically but end in disaster.
In modern India, the arranged marriage has become a compromise between the parents’ considerations and the youngsters’ preferences, often at their own suggestion of a prospective partner they have met in university or on the job. Even where the parents introduce them to a partner they have sought out, the smartphone gives the engaged couple opportunities to get to know each other that were unthinkable in the past. In those days, in the Hindu as in many other cultures, newly-weds often met for the first time before the altar. Often, is was the love of their parents and the confidence in the latter’s choice (even when seemingly harsh or foolish), that gave newly-weds the determination to see the initial difficulties through.
Moreover, nurture and nature conspire to make children take after their parents, so the parents’ choice of a son/daughter-in-law may not have been too different from what those youngsters at a riper age would consider likable in a partner. Very recently, an older woman confided to me that her mother had warned her about the fiancé she had chosen: “Of course she had seen it correctly, as I was to find out later, but since I was young and headstrong, I ignored her advice.” Modern forms of on-line (esp. psychologically assisted) dating try to combine the advantages of mutual attraction with those of the premeditated arranged marriage.
A lower type is where the compatibility of the partners or their families is not considered. Thus, a rich candidate comes to buy your daughter, a bride-price still common in the Muslim world and among African tribes. This type was named after a foreign people deemed hostile yet rich and powerful: the Asura-s. It is common to name negative things after foreigners, e.g. when the native American venereal disease Syphilis spread in Europe through seamen and their encounters with prostitutes, the French called it “the Spanish disease”, Germans called it “the French disease”, and Poles called it “the German disease”.
Another respected foreign tribe, a bit farther removed and less the object of hostilities, were the Gandharva-s, known mostly as musicians. They gave their name to the artsy form of marriage now common, heavily propagated in modern anti-traditional literature and films, first in the West, now in India: the love marriage.
Two other foreign tribes were treated with hostility but also with contempt: the Rakshasa-s (“bear people”, “demons”) and the Pishacha-s, a term with similar connotations as “cannibal”. According to Panini, a warrior clan from the Pak-Afghan borderlands, but the term was later generalized to mean a “demon”. After them, the two lowest forms of marriage were named. The first is the seduction of a woman against the express will of her family, essentially just stealing her. Sometimes this was the outer form taken by a Gandharva or love marriage: the above-mentioned fuitina, where the girl willingly enacts getting abducted.
The lowest form is either seduction with intoxicants, where the woman is in no position anymore to give or withhold her consent, or violent abduction and rape, where she knows very well what is happening but doesn’t want it. History is rife with episodes where women were abducted and forced into marriage. Far more often than is thinkable today, they also acquiesced in the situation as the lesser evil, especially as soon as children came and stabilized the marriage. The classical example here is the abduction of the Sabine women by the Romans.
During the Partition there were numerous cases of Hindu women abducted and raped by Muslims. After a semblance of peace had returned, a lot of them rejoined their families, but many others preferred to stay with their abductors (where they would at least be honoured as the women who gave their parents-in-law grandchildren) rather than to go back to their families and to a life of being reviled as carrying the stain of defilement. Something of the same problem resurfaced when Yezidi women were abducted en masse by the Islamic State in 2014-15. Yezidi tradition was very harsh on a raped woman, but since it had now happened on such a scale, the community elders decided to lift the otherwise usual status of defilement and dishonour, and welcome the victimized women back with full honour.
The remarkable thing about the Shastric arrangement is that all these scenarios are treated as valid marriages. Naïve moderns (“blushing virgins”) and the ever-superficial secularists will object to this arrangement with holy indignation: “See how evil Hindu Scripture is! It legalizes rohypnol-induced seduction and even plain rape!” Worse, they might go as far as to call it “patriarchal”.
As my erstwhile supervisor at BHU, the late philosophy professor Kedar Nath Mishra (I signed up for a Ph.D. programme there, which I could not pursue due to family circumstances, but Mishra and I remained in contact), pointed out, it made good practical sense to extend the recognition of the married state even to such crime-originated unions. The Shastra-writers had to deal with real life. They were less into pure principles or moralism, and more into pragmatically offering the best possible solution; less concerned about the individual and more about the large number, the good of society. Thus, unlike modern self-centred liberals, they cared about the child that might spring from such unions. It was no pleasure to grow up as a bastard (reason why “bastard”, “son-of-a-bitch”, “harâmzâda” and other synonyms were the ultimate swearwords), and this arrangement assured that they had a father. It might not be the mother’s favourite partner, but then, the child was half him as much as half her.
For the mother too, this was the least bad possible outcome remaining after unfortunate events had befallen her. As she had become “impure” in the eyes of society, including her own family, she risked being expelled and finding herself alone and defenceless out on the street. The best chance she still had was to become the keep of some rich man, treated as an inconsequential and invisible back street girl but at least cared for, at least as long as she was sexually desirable. More likely, her only possible livelihood would be prostitution, and her child, even if a boy, would soon fall prey to sexual predators too and probably never reach adulthood. It might also affect her sisters’ and brothers’ chances on the marriage market as they now belonged to a “dishonoured” family. It would turn the one-time misfortune of being raped into a lifelong disaster extending beyond her own person. But declaring her legally married to her rapist would give her and her child a leg to stand on vis-à-vis him and his family. It would also restore her honour somewhat in the eyes of her family and of society at large.
All this makes sense only in a society with a “patriarchal” valuation of the roles of men and women and the life-styles open to them. But that is the society in which the Shastra-writers had to design their rules. They could not make the affected women fall back on the state’s social security, as in modern welfare states. They dealt with reality, not with wishful thinking in air-conditioned parlours as American feminists do. What they ensured was the best possible outcome for all concerned in the circumstances.
In feminist eyes, all men are essentially rapists anyway, so the woman’s “choice” of life partner didn’t make much difference. In the jaded feminist view of marriage, even the most romantic wedding only leads to a life of oppression and estrangement, so a straightforward rapist is not very different from the subtle rapists that most husbands are.
In today’s society, this arrangement need not be continued. The Shastras themselves provide for the possibility of change, esp. for allowing the letter of the law to be changed by senior people well-versed in the laws and careful to preserve their spirit. In this case, changing values in society and the availability of other support structures than the family, such as modern women’s full access to the labour market, do indeed occasion and justify such changes. The extant Hindu Marriage Act, a modernized legislation from the 1950s, has introduced new attitudes and doomed the practice of the “reparation marriage”.
Among Muslims with their more backward Shari’a, it still persists. But even there it is on its way out, as witnessed in the reforms in several Middle Eastern countries. The Indian Muslim community is called upon to follow suit. In Hinduism, such reforms need not be seen as a Western encroachment on native tradition, not even where formally they are just that. Essentially, they fulfil Hindu tradition’s own capacity for what modern Catholics would call aggiornamento, “updating”.
To sum up: on the occasion of a 2017 verdict ordaining a reparation marriage, and not knowing the details of this specific case sufficiently, we have merely wanted to observe in general that the reactions of indignation clothed in feminist jargon bespeak a poor sense of history and a defective sense of proportion. This type of verdict, sanctioning the marriage of a rapist with his victim, may and indeed does call for a correction in a modernizing sense; but as an age-old practice it is understandable in context.
As happens so often, and more so among our culturally illiterate contemporaries, we notice the typical projection of contemporary norms emanating from a prosperous equal-opportunity society onto an ancient arrangement fit for a traditional society. This is a narrow-minded thought habit, and it had better be corrected. Yet, regardless of these intellectual niceties, we may nonetheless agree that the days of the reparation marriage are over for good.