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Wife Swapping trend in India: Explaining the legal aspect

EMERGING TREND OF WIFE-SWAPPING

Wife Swapping is a practice in which two consenting couples indulge themselves in sexual activity with another married man and woman. Wife swapping is not a new phenomenon, it was a hidden practice due to the stigma attached to “sex and sex-related talks.” It was for the first time, during World War II when the practice of wife swapping was openly seen, with a considerable number of people participating in it. Throughout the war, millions of people died thus, in order to look after the requirements of the wife of the deceased including sexual needs, few militaries, naval, and especially Air Force pilots openly exchanged their partners for sexual intercourse. Later on, in the year 1957 when the magazine named MR, observed public attention on wife swapping, it started an advertisement column for the wife swapping practice

Moreover, with the advent of technology and the widespread availability of the internet, wife-swapping became a common occurrence. There are numerous websites dedicated to wife-swapping, even some of the couples themselves create their private websites where others can sign up for wife-swapping clubs. As a result, the practice of wife swapping spread across other countries and can be seen practiced in the countries like India. This article deals with the practice of wife swapping and related issues in India.

MARRIAGE IN INDIA

Marriage is one of the most important social institutions deriving its sanctity from religion, in the civilized world. For almost all religions marriage other than for spiritual benefits is for the sake of procreation and sexual pleasures. For some religions, it is a social rite and for others, it is a social contract but for every religion, marriage is a religious sacrament in which a man and woman are joined in a permanent relationship and it is believed that a person should not indulge in sexual activity with any person other than his or her own spouse.

SEX-RELATED NORMS IN INDIA

India is a country where people worship ‘Shivalingas’ which represents the union of feminine and masculine. It is also worldwide known for the manuscript named, “Kamasutra” which

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contains the principles of lust (text on sexuality and eroticism). The Hindu and Jain temple named, Khujaraothe is known for its nagara-style architectural symbolism and erotic sculptures on it.

Despite the fact that India is the home country to the Kamasutra and Shivalingas, as well as the temple of Khujaraothe, the word “sex” remains forbidden. People still prefer to talk about sex within the four walls of their bedrooms rather than discussing it openly.

India in the past few years has started following the concept of wife swapping openly which has become popular in every corner of the country.

RELATED ISSUES WITH THE PRACTICE

Swapping is a notion in which married spouses swap partners for an express agreement of sexual intercourse. If done with approval, cheating has been elevated to a new degree of acceptance. Despite the societal idea that marriage is a sacrament and married couples should only experience sexual intimacy, the practice of exchanging wives for fun has taken over the country. India is a patriarchal country, which has also been a place to exploit women. The offenses against women are increasing rapidly and taking new forms to exploit women. The practice of wife swapping is being misused by the husband in the following ways:

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TO FULFILL AMBITIONS

It has been observed that due to the emergence of wife swapping practice women are being used by their husbands to fulfill their ambitions and dreams by asking their wives to cater to the physical needs of their bosses or higher officials in order to obtain professional benefits and promotions. It can be observed from various cases, for instance, in 2012 the wife of a Navy officer filed a petition in the Supreme court stating that the senior of her husband at INS Kochi approached her with an offer of wife swapping, later on when the offer was refused by the husband, the senior officer allegedly threatened him [Sujatha Ravi Kiran v. State of Kerala, (2016) 7 SCC 597]. Moreover, in the case of Shubham Sonker, an FIR was filed against the husband and five other navy officers alleging physical, emotional cruelty, as well as sexual assault on his wife. The wife made allegations stating that it is a case of wife swapping[ Shubham Sonker v. The State Of Madhya Pradesh, 2020].

In 2018 adultery was decriminalized India as violative of Article 14 (right to equality) and Article 21 (right to life and personal liberty)[Joseph Shine v. Union of India, 2018 SC 1676]. Eventually, in January 2021 Centre plead to the Supreme Court of India to keep adultery a crime in the military, the sole purpose behind the plea was to ensure discipline in the forces.

TO HAVE SEXUAL INTERCOURSE WITH OTHER WOMEN

In the practice of wife swapping the consent of both, the husband, and the wife, is essential but many times it has been seen that an interested spouse forces his or her spouse to indulge in the practice not only in military or professional field but among common people also. Mukesh v. State, 2017 is a case in which the husband insisted on wife swapping, and when she refused, her husband threatened her with divorce and death[Mukesh v. State (Govt. of NCT of Delhi), 2017].

Similarly, in 2020 an FIR was filed against the accused stating that he fed her alcoholic substances and when she woke up, she found herself naked. When she raised an issue, the accused showed her a video of her having a sexual relationship with the accused and threatened her. She further stated that the accused was also allegedly utilized to perpetrate rape on her since her husband was having an unlawful relationship with the wife of the accused for which no evidence was presented[Hemlata v. State of U.P., 2020].

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SPERM COMPETITION THEORY

When a woman engages in sexual intercourse with a man other than her husband, it makes the husband biologically compelled to last longer, and have more energetic intercourse. A shorter refractory period between erections, firmer ejaculates, and more sperm in his ejaculate, is a biological response as confirmed by Robin Baker and Mark Bellis

TO SHARE WITH BROTHERS

Due to the decline in sex ratio many women are being forced to sleep with more than one man after marriage. During an interview a woman (Munni) told, “My husband and his parents said I had to share myself with his brothers, they took me whenever they wanted — day or night. When I resisted, they beat me with anything at hand.” Some say that such practice is beneficial, as it reduces marriage expenses, land division, household expenses, etc. In small communities where it is difficult to get married or has a smaller number of girls, families force the girl to have a sexual relationship with more than one man.

FINANCIAL BENEFIT

Due to Covid-19 and associated restrictions and lockdown, people faced various financial issues. CEO of the Centre for Monitoring Indian Economy, Mahesh Vyas said “Because of the second wave of coronavirus, almost 10 million people, lost their jobs and 97% of household incomes have decreased since the pandemic began last year”. Eventually, due to financial problems, many women started looking for jobs and got trapped in wife swapping rackets, where they force them to have sexual intercourse with other men.

Various instances of a husband forcing her wife in such practice to have sexual intercourse with other married women as well as for financial benefits have been seen. Thus, we can say that the practice of wife swapping during the pandemic has started taking the form of the forceful practice of prostitution on large scale.

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WIFE SWAPPING RACKET

Technological advancement not only led to widespread such practices but also many at times helped in observing such serious issues. In January 2022, a woman speaks about her experience in an interview in episode 37 on a YouTube channel named Althwaf Vlogs. She said, “I told my husband that I don’t want all this and I want to stop, but he says it makes him happy to see me lie with others.” after that interview, she filed a complaint. The district police chief of Kottayam, Shilpa Dyavaiah said that “it is a rape case and not a couple swapping case.” The FIR for gang rape, unnatural intercourse, bribery, criminal intimidation, and aiding and abetting was registered. Sex rackets have been in Kerala for a long time, but wife swapping on such a wide scale was unprecedented; this occurrence is shocking since such patterns have not been exposed before.

An estimated 325 million girls and women in five countries namely Bangladesh, Brazil, Ethiopia, Nigeria, and India were married in their childhood. Child marriages and the practice of wife swapping without the consent of the spouse can lead to an increase in child sexual assault, which makes it essential to look into the issues and associated offenses of the practice of wife swapping. Bhagyashri Dengle, the executive director of a charity working on the issues of wife-swapping (Plan India) said, 

“We are already seeing the terrible impacts of falling numbers of females in some communities. We have to take this as a warning sign and have to do something about it else we’ll have a situation where women will constantly be at risk of kidnap, rape and much, much worse.”[Bhalla, supra note 9] 

CONCERNED LAWS IN INDIA

In India, there is no such law or statute which deals directly with the offenses associated with the practice of wife swapping as it is a new phenomenon that has emerged in India. Under the Indian Penal Code some offenses such as Rape (section 376), Gang Rape (376D), Outraging women modesty (354), Sexual Harassment (354A), Criminal intimidation (section 505), and Unnatural sexual intercourse without consent (section 377). Furthermore, the statutes such as the Domestic Violence Act, 2005 deal with sexual, physical, mental, and financial abuse, and according to section 4 of The Immoral Traffic (Prevention) Act, 1956 any person who is living on the money earned by prostitution will be punished including family members.

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Wife swapping can also involve other issues, for instance, Voyeurism, Stealthing (removing condom during sexual intercourse without consent), marital rape, sexually transmitted disease, mental health as well as physical health problems, etc. Additionally, wife swapping leads to objectifying the women and their sexual exploitation which is not only inconsistent with Article 21 of the constitution but also violates their fundamental right provided under Article 14 (Equality), 15 (Prohibition of Discrimination on the basis of sex). 

SUGGESTIONS

The laws only deal partly with the wife swapping associated offenses thus it becomes necessary to enforce a proper statute providing harsh punishment for engagement in wife

swapping rackets and associated crimes. India is a patriarchal society where women are oppressed from time immemorial. Non-enforcement of the law due to fear of its misuse in the future will be clear discrimination. Thus, the Indian Criminal law needs to include a direct provision for wife swapping. Moreover, it should also be considered as a sufficient ground for divorce.

Reliefs like privacy and compensation should also be provided to the victims similar to those of rape victims.

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As wife swapping is becoming more common, both the government and the courts must define “consent of both the parties” clearly. It should be done since wives are sometimes unable to confront the deviant behaviour of the husband for a variety of reasons.

CONCLUSION

Wife swapping is a concept in which the consent of both the husband as well as the wife is an essential aspect. Nowadays due to a variety of reasons forceful engagement of spouses in wife swapping has been noticed. The majority of women in India still adhere to the sacramental norms of marriage and refuse to engage in pre-marital or post-marital sexual activity. However, most women engage in wife-swapping behaviours because their husband forces them to do so, or for the promotion of their husband. India is a country where religion, custom, and culture still retain sway. Thus, there is a need to consider the issue of wife-swapping seriously and take preventive, prohibiting, and redressal measures.


Author

Mehak Khan

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