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Delhi High Court

Stand of The Supreme Court on Rights of Sex Workers: The Story so far.

by Guest Author 08/12/2024

written by Guest Author

By Srishti Sarraf

The Indian sex workers case is making the top headline these days. The recent order dated 19-05-2022 given in the case of Budhadev Karmaskar v. State of West Bengal And Ors., popular as the sex workers case the Hon’ble Apex Court has categorically recognized that the basic protection of human decency and dignity under Article 21 of the Constitution of India extends to sex workers and their children, who, bearing the brunt of social stigma attached to their work, are removed to the fringes of the society, deprived of their right to live with dignity and opportunities to provide the same to their children. Reliance has been placed on the earlier landmark judgments of the Court to emphasize & expound on the scope of the right to life under Article 21. Notably, this is not the first time when the Indian judiciary has held the dignity of the community of sex workers in its ruling. Two years back the Bombay High Court has held that “there is no provision under the law which makes prostitution per se a criminal offence or punishes a person because he indulges in prostitution.” A few years back the Delhi High Court also ruled that “simply because the victim worked as a sex worker before the incident in question doesn’t confer any right upon anyone to violate her dignity.”In a significant ruling, the Gujarat High Court has also observed that “Section 370 of the Indian Penal Code will have no application in a case wherein sex workers are engaged in prostitution of their own volition and not according to any inducement, force or coercion.” But the factor that is making the recent Budhadev Karmaskar v. State of West Bengal and Ors. Case super buzzing is the fact that this time the Court has issued significant binding guidelines to ensure that the community is being treated with dignity and not being abused. Further, to understand the depth of the case it is important to know about the history of the case along with some categorical development that has taken place in this case which is summarized right beneath.

BACKGROUND

This case was originally filed as an appeal before the Hon’ble Apex Court against the conviction order given by the Calcutta High Court in a case of the brutal murder of a sex worker living in a red light area in Calcutta in 1999. The factual matrix of the case highlights that the accused battered the head of the deceased again and again in a hideous and barbaric manner leading to putting a period on her breath, thus the Court naturally decided against the accused and the accused chose to file the criminal appeal before the Apex Court. Considering the heinous nature of the alleged crime the Hon’ble Apex Court straightforward dismissed the appeal however it later converted the case into a Public Interest Litigation suo motu by its order dated 14th February 2011 to address the problems of sex workers in the country. In its earlier orders the Bench consisting of Hon’ble Mr Markandey Katju, and Hon’ble Ma’am Gyan Sudha Misra, JJ. equivocally stated that their aim was “to create awareness in the public that sex workers are not bad girls, but they are in this profession due to poverty”. The Bench observed that: “Sex workers are also human beings and no one has a right to assault or murder them. Sex workers are also human beings and no one has a right to assault or murder them. A person becomes a prostitute not because she enjoys it but because of poverty. Society must have sympathy towards the sex workers and must not look down upon them. They are also entitled to a life of dignity given Article 21 of the Constitution.’

REMARK ON PREVIOUS SIGNIFICANT ORDERS

The Apex Court has passed several orders issuing directions to the Central Government and the State Governments in this case. In its very initial order dated February 2014 the Apex Court directed the Central and the State Governments to prepare schemes for rehabilitation all over the country for prostitutes through Social Welfare Boards along with preparing schemes for giving technical/vocational training to them considering their right to live with dignity under Article 21 of the Constitution of India.

Subsequently, by another order, the Court constituted a panel headed by Mr Pradip Ghosh, Senior Advocate as the Chairman to discuss various aspects of the problems relating to sex workers and submit its report. It also directed the States/Union Territories and the Union of India to carry out surveys to ascertain the number of sex workers who want rehabilitation and who would voluntarily continue in the same profession. The Apex Court categorically stated that “it is important to educate the public to present the situation of sex workers in the country in the correct light, as it is ultimately the people of the country, particularly the young people, who by their idealism and patriotism can solve the massive problems of sex workers.”

Thereafter the constituted panel identified three core areas for consideration including prevention of trafficking, rehabilitation of sex workers who wish to quit sex work and conditions conducive for sex workers to live with dignity under the provisions of Article 21 of the Constitution of India and submitted various reports time to time. The Panel subsequently gave many suggestions. The emphasise was given to the point that sex workers face great difficulty in getting ration cards, voter’s identity cards or opening bank accounts thus the authorities should see to it that sex workers do not face these difficulties as they are also citizens of India and have the same fundamental rights as others. The Court confirmed that the suggestions made by the Panel shall be seriously taken into consideration by the Central Government, the State Governments and other authorities and hence all efforts shall be made to implement these suggestions expeditiously. On 14.09.2016 a final report along with recommendations of the Committee was placed on record. Meanwhile, also by its various orders the Court emphasized the gravity of the matter and urged the Government to place the draft legislation before the Parliament at the earliest. In the wake of the Covid-19 outbreak that has caused severe disruption in normal life, it was realized that the class of sex workers fall under the list of vulnerable classes being adversely hit by the pandemic. Thus, the Court issued a direction for the supply of dry rescue so that the sex workers who are in dire straits can be rescued. Similarly, by order dated 10.01.2022, the Court had directed the State Governments/Union Territories to complete the process of issuance of ration cards/voter cards to all sex workers expeditiously.

PECULIARITY OF THE RECENT ORDER

By its very recent order, the Court has taken note of the periodical adjournments so taken by the Union of India in laying down a dedicated Bill. Thus, to fulfil the existing gap in the legal framework exercising its particular powers conferred under Article 142 of the Constitution of India the Court has passed six binding directions to be in force till the legislation finally comes up. Notably, the directions so issued relate only to the rehabilitation measures in respect of sex workers and other connected issues. These directions can be summed up as follows:

Any sex worker who is a victim of sexual assault should be provided with all facilities available to a survivor of sexual assault, including immediate medical assistance and proper medico-legal care.
The State Governments were directed to survey all ITPA Protective Homes so that cases of adult women, who are detained against their will, can be reviewed and processed for release in a time-bound manner.
The police and other law enforcement agencies were directed to be sensitised towards the rights of sex workers and were directed to treat all sex workers with dignity and should not abuse them, both verbally and physically, subject them to violence or coerce them into any sexual activity.
The Press Council of India was directed to issue appropriate guidelines to protect the identities of sex workers, during arrest, raid and rescue operations. Besides, the strict enforcement of newly introduced Section 354C, IPC which makes voyeurism a criminal offence, was directed to be extended against electronic media as well.
Measures that sex workers employ for their health and safety such as the use of condoms, should neither be construed as offences nor seen as evidence of the commission of an offence.
The Central Government and the State Governments, through National Legal Services Authority, State Legal Services Authority and District Legal Services Authority, are directed to carry out workshops for educating the sex workers about their rights vis-a-vis the legality of sex work, rights and obligations of the police and what is permitted/prohibited under the law. It was also directed that the sex workers can also be informed as to how they can get access to the judicial system to enforce their rights and prevent unnecessary harassment at the hands of traffickers or police.

Notably, it was directed to the State Governments/ UTs to act in strict compliance with the above recommendations made.

HAS THE APEX COURT RECOGNIZED SEX WORK AS A PROFESSION?

The Apex Court in its recent order has categorically held “that notwithstanding the profession, every individual in this country has a right to a dignified life under Article 21. The constitutional protection that is given to all individuals in this country shall be kept in mind by the authorities who have a duty under Immoral Traffic (Prevention) Act, 1956”. Now, the controversial question here is whether the use of the term “profession” here implies recognition of sex work as a profession. Notably, the term profession has been used time and again in the earlier order of the Apex Court as well. But this cannot be termed as recognition of sex work as a profession. In this regard, the Court has clarified in one of its orders stating that “this Court should not be perceived to advocate the recognition of sex trade or promote the cause of prostitution in any form and manner.” Reportedly, on this issue, Tripti Tandon, advocate for the Durbar Mahila Samanwaya Committee and Usha Cooperative, which are parties fighting for the rights of sex workers, stated that the order “does not recognise or have the effect of recognising sex work as a ‘profession’”. Here, it needs to be clarified that from one perspective recognition of prostitution as legitimate work reinforces women’s position as subordinate or sexual objects for men. Having said this, one also needs to be mindful of the fact that the judiciary of this Country in a plethora of judgements has affirmed the stand that voluntary sex is not illegal. Thus, no reason exists to regard prostitutes as criminals and maltreat them.

THE WAY AHEAD

Notably, the matter is yet pending before the Hon’ble Apex Court and is listed on 27.07.2022. The Court has strictly directed that the Union of India file its response to the recommendations made by the panel within six weeks. Let us hope that the Government come up with some positive response and the class of sex-worker get dedicated legislation for the protection of their life and dignity super soon. May the current discussion of the law eliminate the moral hypocrisy and class discrimination surrounding the class of sex workers.

08/12/2024 0 comments 24 views

Devolution of Intestate Transgender’s Property

by Guest Author 08/12/2024

written by Guest Author

Author: Sayan Dasgupta

Where there exists a property, inheritance of the same shall always be a pertinent question. An heir is a person who is entitled to receive intestate deceased’s property under the laws in intestacy. Succession can follow only after death of a person. There are two forms of succession – [i] testamentary succession (by will), and [ii] intestate succession (in absence of will). A will is a declaration or a legal instrument which governs the inheritance on occasion of death to the person the deceased desired. In lack of a testament, the devolution of property is governed by the Hindu Succession Act, 1956 for Hindus, Sharia law for Muslims and The Indian Successions Act, 1925 for persons outside the scope of the preceding laws.

The inception of Hindu Succession Act, 1956, in the nascent independent India of 7 years was, and still is entrenched in cis-normativity. Its preamble observes that it governs and codifies succession of property of an intestate Hindu. Use of terms like “male” and “female” gives a nod to acknowledging genital and chromosomal composition and not self-determined gender identity. It wasn’t until recently that daughters were incorporated under Section 6 of the Act to be legal heirs along with sons of the deceased by way of Hindu Succession (Amendment) Act, 2005.

The Sharia law can be harkened to the Holy Quran, Sunna, Ijma, and Qiyas. The Islamic jurisprudence provides an elaborate scheme of devolution of property amongst the successors, and other issues of maintenance. However, the grand narrative essentially reduces to antagonistic behaviour and indifference towards queer persons. Particular mandates forbid crossdressing and sodomy biting away from sexual and gender autonomy.

Additionally, Part V of The Indian Successions Act, 1925 provides a consolidated guide to devolution of intestate succession. The legislation, even though secular, is not gender neutral. The legislation has explicit masculine notions by the way or pronoun “he”. It provides primacy to biological composition, and lineal parentage; something that is seldom seen in the trans community.

None of the governing laws provide any template for property devolution in trans communities. It discounts the factum that, for centuries, trans, intersex and gender queer/non-binary persons have been disenfranchised and driven away by families. NHRC in a study, first of its kind detailed that only 2% of trans persons stay with their parents while the rest are deprived from participating in any form of economic activity or compelled to take low-income adverse jobs causing a societal gender discrimination merging into many domains of the State.

The trans, intersex, and gender queer persons abandoned find home alternatively in a chosen ‘family’ and are initiated into the hijra or aravani community by the senior member/designated mother of the structure – the Guru. The Guru takes the responsibility of the structure and “chelas” and provides emotional support, financial clout and social standing. The Guru ties the house and provides parental guidance to the chelas. This adopted system has been nomenclatured as the Guru-chela pratha/parampara.

The proposition of devolution of property in such a customary practice was contemplated by a single judge bench of Himachal Pradesh High Court in the case of Sweety v. General Public. The appeal arose from a trial court judgement which held succession of intestate deceased trans person, Rajia alia Ratni Nani would be via Hindu Succession Act, 1956 on a prima facie assumption by the name that the deceased was a Hindu. Their Guru averred that she was the only successor of the property left behind since once initiated in the hijra community, the guru is the only person related to the chela, ergo the entitlement. The HC considered the issue of mode of succession of property of a kinnar in absence of a profession of religion. Sweety, the guru of the deceased led documentary evidence that she was the guru; such as, presence of guru’s name in the deceased’s ration card and bank account. The Court signified displeasure and reversed the judgement of the HC holding that succession would occur as per the customs of the guru-chela parampara and held Sweety to be the legal heir of the deceased. While the judgement was laudatory and took cognizance of the NALSA judgement, it had some serious shortcomings and major lacunae.

The first issue is the lack of gender sensitivity in the judgement. One consistency that is noted throughout the judgement is use of the word “eunuch”. There is no reasoning as to why that terminology is used. A eunuch is a castrated male who have historically been a part of the hijra community amongst many others. There was no evidence led on behalf of the deceased and their guru that they were, in fact, castrated. This actively demonstrates the Court’s lack of clarity as to whether it was referring to the deceased’s gender identity or a biological condition, ergo making derogatory assumptions. What had been positively averred was that the deceased and their guru were intersex persons. The Court’s lack of acknowledging gender identities is emblematic of its gender insensitivity and the progress required to be made.

The second issue is that the Court decided the succession of property of an intestate transgender in absence of religion. The glaring concerns the devolution in case of known religion. The Court in the matter had not indulged much into finding the religion of the deceased person. This necessity was further diluted by lack of any response to the notice. The principal argument made by the appellant was that once initiated into the kinner/hijra community, all ties to the external society is severed thereby waiving any religion. Furthermore, there was no evidence led to provide any sort of religious conversion or an initiation ritual. Therefore, it becomes unclear as to why the Court adopted the customary practices guru-chela parampara. Where arguments could be made in favour of such position to preserve indigenous practices of trans, intersex and gender queer practices, there is an obvious intersection with right to religion envisaged in the Constitution.

Adoption of one custom and renunciation of previous custom has not been considered as a question of law by the Courts of India. However, such an issue was considered by the Supreme Court of Nigeria in the case of Adeniyi Oluwo & Ors v. Olabowale Oluwo & Ors where the Court considered whether a person could renounce certain personal law and custom and adopt another and held:

“It follows therefore that by virtue of his change, his personal law changed to the Benin Customary Law; distribution of his estate on intestacy must necessarily be governed by Benin Customary Law. He married Benin women who had children for him; he carried on various business activities in and around Benin City. The change of his status endowed him with the rights and privileges of a Bini indigene and his change in status accords with Benin Customary Law”

This essentially meant that there can be a change of personal customary law by acculturation or assimilation. If the same standards are to be followed for devolution of property of intestate trans, intersex, and gender queer persons, the standard of evidence would be too high given the lack of resources, disenfranchisement and involuntary seclusion/ostracization. However, the burden would still need to be met as to renunciation of religion and ceremonious initiation into the community. Further, it must also be shown whether assimilation into the kinner/hijra community would automatically lead to loss of religion. Further, there are many literatures to support the claim of guru-chela relationship being exploitative, abusive and is contemplated as a form of bonded labour. Thusly, the customary practice isn’t a tenable for the long term.

Need for Gender-Neutral Language in Property Law

Lockean conception of property provides that property is an extension of self. This ipso facto provides a rationale that gender is an important variable in property governance. The property law, as explored above is highly cis and heteronormative. It is submitted that most legislations are entrenched in colonial ideations or predate independence itself. This often has resulted in predominant usage of masculine pronouns and predisposition resulting in disenfranchisement of other gender identities. This usage of gendered generics is a categorical medium of casual sexism; as has been proven by several empirical researches.

There have been several vedic references to the ‘third sex’ which includes a wide spectrum of genders and sexualities providing them with shelter, protection, amenities, provisions of sustenance and incorporation into the dharma. There is no reason that the present legislation must be read in a heteronormative lens excluding many. It was laudably noted by the Madras HC in Sushma v. Police Commissioner of Chennai that the LGBTQIA+ community spend majority of their lives adjusting to a social morality and “have to turn themselves inside out to suit our notions of social morality and tradition”.

This judgment while allotting rights to the trans appellant missed an opportunity of answering issues of a broader ambit, i.e., what happens to the property of a transgender whose religion is known. It can be submitted that incorporation and merging of the trans and gender queer community in Hinduism is emblematic of the fact dharmic tradition and gender have always been intertwined. There are several temples with patron deities for the hijra communities and temples with trans priestesses.

In Shivani Bhat v. State NCT of Delhi, the Delhi High Court declared that “Gender identity and sexual orientation are fundamental to the right of self-determination, dignity and freedom. These freedoms lie at the heart of personal autonomy and freedom of individuals.” It is time these words are effectuated into creating a safer and inclusive legislation and interpretation with a queer lens.

08/12/2024 0 comments 31 views

Gender Implications of Pre-Nuptial Agreements

by Guest Author 08/12/2024

written by Guest Author

Author: Sayan Dasgupta

The sporadic distribution of persons, identity, culture, language has always been a part of the Indic civilization. This heterogeneity implied a myriad of personal laws; both codified and uncodified. Where such diversity is engrained in the social fabric of India, such diversity could also mean plurality of gendered injustices. Delhi High Court on this note grappled and encouraged the Centre to act on the idea of Uniform Civil Code such that it doesn’t “remain a mere hope”. However, the Courts’ activism is not recent. Kerala HC in Agnes Alias Kunjumol v. Regeena Thomas also highlighted the need for such a legislation for subsistence of marital institution.

The tapestry of Bharat and its consonance with debate of UCC is a stuck gramophone. Where one camp argues for uniformity and homogeneity of personal laws, another camp argues that it would bludgeon religious freedom. However, a fruitful discourse is impossible without a substance of the legislation or a bill to test the veracity of either of those camps. Notwithstanding that, what can be subjected to a litmus test is the Goan Uniform Civil Code which has been lauded by the former Chief Justice of India. The Portuguese Civil Code, 1867 has several peculiarities, gross gendered inequalities, and notions of cis-gendered male heteronormative superiority. To no extent can it be called uniform or civil. Nonetheless, a particular peculiarity that catches attention which is invisible in the Indian jurisprudence of personal laws finds home in the Goan UCC- pre-nuptial agreements.

Pre-nuptial agreements or “Ante-nuptial Conventions” as provided in Section V of the Code are agreements entered into by spouses to stipulate their assets for the purposes of protecting their wealth from the ‘economically inferior’ spouse. The general matrimonial sphere of India finds such agreements as void but may lend an evidentiary status. The Goan UCC contrarily finds such agreements valid as long as they are not in contravention with the Code and are recorded by way of a public deed (Article 1097 of the Code). The ensemble attempts to displace the state law with the contractual terms agreed upon in the event of divorce or dissolution by the death of a spouse. This practice is commonplace in the western legal system. In lieu of such an agreement, there is an obvious waiver of protections ordained by the state laws or customary practices.

The concept of pre-nuptial agreements is not alien to India. One of the first cases recording such a reality was the case of Hamidunnessa Biwi v. Zohiruddin Sheikh, (1890) and Tekait Mon Mohini Jemadai v. Basant Kumar Singh, (1901) where the Courts held agreements were invalid on grounds of public policy. However, there is a contrarian position held in cases like Nawab Khwaja Md. Khan v. Nawab Husaini Begam, (1910) where the Court found such agreements as valid and good in law. Section 40 of the Divorce Act, 1869 which governs the dissolution of Christian marriages requires the Court to look into the existence of any such pre-nuptial agreements. In any case, such validity of the agreement was not accorded to Hindu marriages where marriage isn’t viewed as a contractual relationship, but rather a sacrament. Supreme Court on several occasions has observed that “public policy” does not have an ascertainable form but rather, changes with the change in time. At this juncture, it becomes pertinent if the lens of public policy should change concerning pre-nuptial or post-nuptial agreements.

In the Indian matrimonial context, apart from the predilections of religion, customs, kinship, dowry, and class, the wealth distribution or the wealth gap always favours the man in the relationship putting the female counterpart in the ‘economically inferior’ and precarious position. More often than not, such economic vulnerability of the female counterpart is due to the lack of autonomy in matrimonial relations tinted with patriarchal notions of ‘bread-winners’ and ‘homemakers’ apart from the obvious lack of choices in making life decisions before or after marriage. Institutions of religion or customs do not seem to offer much reprieve either. Kerala HC set such a precedent in Ranjith P.C. v. Asha Nair where it was set that it is reasonable to expect household work and chores from a daughter-in-law.

Given this context parallel to societal import for the importance of marriage, women would always be, evidently, at a more vulnerable position. Since most pre-nuptial agreements are for wealth and asset protection in event of dissolution, they would always be in favour of the ‘economically superior’ spouse. Conventionally, that would be at the expense of the woman. It would always be the husband at a dominant position, given the interpretation to the husband’s position in the family unit; regardless of the financial situation to set the terms of the agreement and forgo the protection of laws and customs set in place. This adversely impacts the social and economic well-being of the woman in the relationship and contributes to financial vulnerability. Furthermore, it would also amplify the magnitude of the unequal distribution on the vectors of gender.

This sense of entitlement can be harkened back to the labour theory of value of Karl Marx. The doctrine simplistically argues that what is created by the labour of the person is to be owned by them due to the input of labour power. This was Marx’s blue-collar notion of work which now cannot be considered sound. What is pertinent herein is the feminist and the moral critique of the proposition which questions the narrow view of what is considered labour, power, and productivity. To analyse this, a divorce case of 1986 in New York can be taken into consideration. A man, who was pursuing his medical studies gets married to a woman in an arranged setting. As a commonly expected practice, the wife was expected to stay at home and take care of the household. While the wife carried out such duties, the husband was able to finish his education and build a successful practice of 14 years. Events occurred which resulted in a divorce. The husband argued that he does not owe anything to his wife considering his practice was built on independent labour power and participation in the market. The Court disagreeing held that the wife contributed value to his practice and thus, had ownership interests in his practice given her participation. The wife’s work was embedded in the successful medical practice. Thusly, she was awarded 40% interest in the medical practice as a divorce settlement.

Devaluation of a woman’s work in the household and entitlement of a man in the family over assets is the oldest, most sexist story of humankind. It is a story sewn so deep into the Indian social fabric that it seems and appears normal. It is the living embodiment of compelled subservience. In a marriage, especially in an Indian context, women are the minority in wealth holding, raising the balance of convenience in favour of men to negotiate and disenfranchise their spouses. Where superficially, it may seem like a move of empowerment, the ground reality screams a different story of exploitation. Sabina Martins, a women’s rights activist observed that “…women across religions being thrown out of their marital homes within months of marriage”. Adjunctively, the waiver of an equitable division of property, or “communion of assets” i.e., equal distribution of property leaves the woman at the mercy of her husband. The Government was recently considering the incorporation of such pre-nuptial agreements into personal laws for women empowerment. Whether such prerogative is right has been answered by the arguments abovementioned. The Courts, as the sole arbiter of truth, with the knowledge of historical injustices and jurisprudence must always consider gender as a variable, especially in the domain of marriage. A supposed reflection that such agreements could offer an ounce of equality is not sufficient cause for reconsideration of “public policy”. The terms of any premarital agreement will always echo the superior bargaining power and resources of the prospective husband.

Biography: Sayan Dasgupta is a 3rd-year law student pursuing a 5-year integrated degree of B.A., LL.B. with corporate honors. He takes a special interest in constitutional law and public policy. and can be reached via mail or at LinkedIn.

08/12/2024 0 comments 25 views

Marital Rape: A Social and Legal Paradox

by Guest Author 08/12/2024

written by Guest Author

By Vandana Bharti

Despite 75 years of independence, the social status of women in India still stands in shadows. Grievous crimes and alarming rates of pending cases portray the loopholes in the legal machinery of the Indian legal system. One such appalling act is that of Rape – where the dignity and self-respect of a woman is bruised beyond contemplation. When such an act occurs behind four-walls in a matrimonial home, it is known as Marital Rape. Where the spouse engages with his/her better half in a forceful, non-consensual sex it is termed as Marital Rape.

A legally sanctioned contract between a man and a woman forms marriage. In India, the legality of sexual intercourse between a man and a woman gives the husband leverage to consider the consent of his wife perpetual in the course of marriage.

Indian Legislation On The Offence Of Rape:

Section 375 of the Indian Penal Code (IPC) states – A man has committed rape if he had sexual intercourse with a woman against her will, without her consent, with her consent but by putting her in danger or threatening her, with her consent whom she believes that she was lawfully wedded to, with her consent but the consent was given in an unconscious state, and with her consent when she is under 15 years of age. Nowhere does this specify the essential elements and the repercussions of committing marital rape.

As per Indian Penal Code, husband can be convicted on grounds of marital rape only when:

The wife is 15 years of age or below; and is punishable by imprisonment for up to 2 years or fine, or both.
When the wife is below 12 years of age, offence punishable with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine.
Rape of a judicially separated wife, offence punishable with imprisonment up to 2 years and fine.
Rape of wife of above 15 years in age is not punishable.

Precedents In the Law

In the Harvinder Kaur v. Harmandar Singh case (AIR 1984 Delhi 66 ), the Delhi High Court stated that the interference of the Constitution in household matters would destroy the marriage.

The court stated, “In the privacy of the home and the married life neither Article 21 [No person shall be deprived of his life or personal liberty except according to a procedure established by law] nor Article 14 [The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India] have any place.”

In 2019, while introducing the ‘The Women’s Sexual, Reproductive and Menstrual Rights Bill, 2018’ Shashi Tharoor, Member of Parliament in the Lok Sabha, said, “‘Marital rape is not about sex, but about violence; it is not about marriage, but about lack of consent.”

Naval Rahul Shiralkar, Advocate at High Court of Bombay Judicature at Nagpur, said, “Courts have various methods to identify marital rape and have given strict punishments but due to the lack of a law against a crime like that, the judiciary is bound to not admit ‘forceful intercourse by a man upon his wife’ as marital rape.”

Shiralkar said that many of the marital rape cases went unreported in India. He added, “There are at least 5-6 cases reported every year in Nagpur Family Court which are pending litigation.”

Saranya S. Hegde, President of the Mahila Dakshata Samiti, Bangalore, said that husbands often thought that they could do everything with their wives because society and marital laws supported that. “The helpless and dependent suffer in silence.”

Hegde said, “If a woman goes to a [family] court, the judge often favours the husband and asks the wife to adjust.” In her more than 15 years of experience, Hegde said she had seen women committing suicide due to the mental torture they went through because of marital rapes and domestic violence.

Kamlesh Premi, Counsellor at home at the Centre for Social Research, said the court procedures took almost five or seven years. Having been a counsellor for more than 20 years, Premi said that the judiciary system was too lengthy.

First, the woman has to complain to the Crime against Women Cell and get counselled. Then if she wants, she has to file an FIR (First Information Report) under Section 498 (A) (Husband or relative of husband of a woman subjecting her to cruelty) of the IPC, which in itself is quite a lengthy procedure. And at the end, even after an investment of at least five years and financial resources, the court would either ask her to adjust or maybe get her a divorce with maintenance. Hence, a lot of women compromise or either go for mutual divorce. “Therefore, there is a lot of under-reportage for marital rapes,” she added.

“It is in rare cases that a wife asks for a divorce or maintenance,” Premi said. “The biggest problem is that the husbands treat wives as private property. They think they own her.”

Dr. Ratna Purwar, a gynaecologist in Lucknow, said women often complain about the presence of vaginal or anal wounds in such severity that could substantiate rape. She added that, when men are asked to abstain from forceful sex with their spouse, the most common answer is, “Why did I marry her then?”

The financial dependency of women becomes a prime reason for all the physical and verbal abuse endurance. It had become normal despite the mental health depletion and trauma. Marriages in India have the concept of ‘implicit consent’ to sex and women sadly or happily comply and do not report it.

In the Anuja Kapur vs Union of India Through Secretary case of 2019 (W.P. (C) – 258/2017) , a PIL was filed asking the Delhi High Court to make guidelines and laws on marital rape. The court replied that drafting of the laws was the work of the legislature and not the judiciary. “The court is more concerned with the interpretation of the law rather than the drafting of laws.”

In the Nimeshbhai Bharat Bhai Desai vs. State of Gujrat case of 2018 (2018 SCC OnLine Guj 732), the Gujarat High Court admitted that marital rape was not just a concept and the notion of ‘implied consent’ in marriage should be dropped. The law must protect bodily autonomy of every woman (married or unmarried).

However, in Independent Thought vs Union of India on October 11, 2017, the Supreme Court stated that sexual intercourse with a girl, below 18 years of age, was rape regardless of her marital status.

Supreme Court of India, in the case of Independent Thought v. Union of India (2017) 10 SCC 800, read down Exception 2 to Section 375, IPC as being violative of Article 14 and 21 of Indian Constitution.

In 2017, the Daily reported a 2014 study by International Centre for Research on Women and United Nations Population Fund on 9,500 respondents in seven states of India. The report concluded that 17% of women received spousal violence while 31% (one in three) men admitted to committing sexual violence against their wives.

In 2016, Maneka Gandhi, then minister for child and women development, said that the ‘concept of marital rape’ that was understood internationally could not be applied to India considering the levels of illiteracy and poverty.

In 2016, the U.N. Committee on Elimination of Discrimination Against Women recommended that marital rape be criminalized in India. After that recommendation, a question was raised in the upper house of Parliament asking what action had been taken. Haribhai Parathibhai Chaudhary, then minister of state for home, replied, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament.” This response was repeated literally by Minister Gandhi in the Parliament.

In the year 2015, the RIT Foundation filed a Public Interest Litigation in the Delhi High Court challenging the exemption of marital rape in Section 375 of the IPC. The challenge is on the basis of Article 14, Article 15 (a fundamental right prohibits discrimination by the state against any citizen on grounds ‘only’ of religion, caste, race, sex, and place of birth), Article 19 (freedom of speech which is the right to express one’s opinion freely without any fear through oral/ written/ electronic/ broadcasting/ press), and Article 21 of the Indian constitution.

Justice Verma Committee report (2013) recommended the discarding of the exception of marital rape. Providentially, in November 2017 a division bench of the

The Law Commission of India in its 172nd Report considered the issue of marital rape, but chose to ignore the voices that demanded the deletion of Exception 2 to s. 375 IPC on the ground that “it may lead to excessive interference with marital relationship” and may destroy the institution of marriage.

In the 42^nd report by the Law Commission, it was proposed that criminal liability be attached to the intercourse of a spouse with his/her minor husband/wife. But the committee banished the recommendation stating that the sexual intercourse between a man and a woman can never impose criminal liability on the husband as sex is the parcel in a marriage.

The Supreme Court, while deciding the issue of marital rape of girls below the age of 18 years, made certain observations and comments that are equally applicable and relevant to married women over 18 years of age.

One of the foremost issues is that of the right to bodily integrity and reproductive rights. While referring to various precedents, the Court found that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as under Article 21 of the Constitution. This right, in effect, would include a woman’s right to refuse participation in sexual activity.

The Supreme Court also noted views expressed by the Justice (Retd.) JS Verma Committee, where reference was made to a decision of the European Commission of Human Rights which concluded that a rapist remains a “rapist regardless of his relationship with the victim”.

According to the 2015-16 National Family Health Survey (NFHS-4), 31% of married women have experienced violence – physical or sexual. The NFHS reported that about 4% of women were forced to have sexual intercourse when they did not want to, 2.1% to perform sexual acts they did not want to, and 3% were threatened to perform sexual acts they did not want to.

In 2015, two separate pleas were submitted to the Supreme Court asking for the law to be amended by deleting the marital rape exception. In the first, the petitioner, a 28-year-old, had already filed charges against her husband for domestic violence (a civil, not criminal offense) as well as “cruelty.” She used her maiden name, Reema Gaur, to shield her identity.

She wanted to bring him to justice for repeatedly raping her. “The law as it stands today amounts to a state-sanctioned license granted to the husband to violate the sexual autonomy of his own lawfully wedded wife,” the plea stated.

Appearing on TV, heavily veiled, wearing spectacles that magnified her eyes, Gaur talked about her marriage. “Every night post the wedding was a nightmare for me. … He would never even ask my permission,” she said. “He used to beat me up, insert artificial [objects] in me. At some point I was in such a condition I was not even able to walk,” she said, her voice breaking with tears. On the night she decided to leave, she said, “He hit me 18 times on my head with a box and a torchlight. And then he inserted the torchlight in my vagina.“

Bleeding and in a semiconscious state, she called her mother for rescue. The bleeding lasted for two months. In the year she was married, when Gaur tried to talk to her in-laws and her parents, “The only thing they told me is, ‘Try to adjust.’ “

In 2014, Akash Gupta of the Rice Institute, a non-profit organisation reported, that the number of spousal violence received by the wives was 40 times more than that received by non-intimate partners.

Deepika Narayan Bharadwaj, a film maker and activist believe the state does not have the potency to support women if they are to seek divorce on grounds of marital rape. “It’s naive to say women have complete right of consent and rights over their body, when the truth is they’re dependent on their husbands for everything, financially, emotionally,” says Bhardwaj.

Trisha Shetty, founder of She Says, a website for information and action on sexual crimes against women argues that protection from Marital Rape is not a western issue that needs solving rather it is a basic human right. People in India are of the opinion that sexual abuse and marital rape only happens to the poor, the fallacy needs to be broken. “That whole assumption that you’re making laws for people who don’t understand is nonsense. Everyone understands the concept of consent, of saying, ‘No.’” says Trisha.

She Says and several NGOs, including Jagori (which in Hindi means “awaken, women!”), have organized workshops and other programs to help women speak out about the sexual abuse and rape. Online, there are additional resources, such as this Marathi language effort to educate about consent via two folk dancers having a musical discussion about the meaning of “yes” and “no.” The government has even set up an emergency hotline, staffed by women, to field calls from women who need police assistance as well as resources and instruction about their rights. In their first year, they received more than 600,000 calls from women, some describing assault and rape within their marriage.

Judicial Stand

In Bhodhisathwa Gautam v Subhra Chakraborthy (1996 AIR 922) it was held that marital rape is violative of Article 21; Right to live with human dignity. Supreme Court held that Rape is a crime against basic human rights and is also violative of victim’s most cherished of the fundamental right. A married woman too has the right to live in human dignity, right to privacy and rights over her own body. Marriage can in no way take away these rights.

In Justice K.S Puttaswamy v Union of India (2017) 10 SCC 1 , it was held that the right to privacy as a fundamental right includes decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.

Uncovering the history of judicial decisions on infliction of serious injury by the husband on the wife the court in Queen Empress v Haree Mythee, (1891) ILR 18 Cal 49 observed that in case of married women, the law of rape does not apply between a couple after the age of the wife over 15 years of age, even if the wife is over the age of 15, the husband has no right to disdain her physical safety.

In Emperor v Shahu Mehrab (1911) ILR 38 Cal 96 the husband was convicted under Section 304A IPC for causing the death of his child-wife by rash or negligent act of sexual intercourse with her.

In State of Maharashtra v Madhukar Narayan Mardikar, AIR 1991 SC 207, Supreme Court referred to the right to privacy over one’s body. It was decided that a prostitute had the right to refuse sexual intercourse. It is wistful to know that all sexual offences committed by a non-intimate or a stranger have been penalised and all females except wives have been granted their right over their bodies.

In Sree Kumar v Pearly Karun, 1999 (2) ALT Cri 77 High Court observed that because the wife is living under the same roof with that of her husband, with no decree of separation, even if she is subjected to consensual or non-consensual sexual intercourse, the offence under Section 376A of IPC will not be imposed.

The idea of spousal rape is fictious to the Indian Judiciary, despite the mental and physical trauma of the survivor.

International Statistics

Marital Rape has been declared illegal and a criminal offence in 18 American states, 3 Australian states, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia. A U.K. case of R v R changed the law to an extent that the courts ruled that even within a marriage, any non-consensual sexual activity is rape.

What can be done?

To help the victim surf the trauma, shelters can be provided as a temporary safe place to stay and the staff may help in the consideration of options available, legal aid services to offer free of cost legal services and advice, support groups to help the victim voice the upheaval. Articulate support for the enforcement of apt laws and for new legislation to curb sexual violence, education programmes and support initiatives at local, state and national level.

Conclusion:

The incessant exemption of marital rape from the ambit of criminal law succours the idea of wife being the property of the husband exclusively. Changing the laws on sexual offences needs to be tactful especially in a country like India where there is an existence of diverse and conglomerate personal and religious laws that might clash with the new amendments in the statutory criminal law. The immediate need of prohibiting and criminalizing marital rape is just not enough. Sensitization of judiciary and police along with educating the myriad believers of the airy concept of marital rape is required in order to acknowledge that the concept of spousal rape; getting raped by one’s spouse is not trivial, and definitely cannot go unpunished.

08/12/2024 0 comments 27 views

Dereliction Of The ‘Other Gender’: Deprivation Of Minor Male Sexual Assault Victims By The ‘Skin-Touch’ Doctrine

by Guest Author 08/12/2024

written by Guest Author

By Sayan Dasgupta

COVID-19 has been a fertile spawning field of sexual violence. Where some Courts have been deontological and acknowledging of this phenomenon, certain judgments act as a means of disenfranchisement of sexual violence victims. Bombay High Court in a recent judgment, in Satish v. State of Maharashtra has rendered an absurd interpretation of Protection of Children from Sexual Offences Act, 2012 [POCSO]. The accused was charged with Section 8 of POCSO read with Section 354 of Indian Penal Code along with Sections 342 and 363, for sexually assaulting a minor girl. The Bench acquitted the accused of sexual assault under POCSO while upholding conviction under the sexual assault charges under IPC on the rationale that there was lack of sexual intention on the part of accused to sexually assault the minor since there “was no direct physical contact, i.e., skin to skin” touch.

This verdict caused a huge uproar in the civil society and the legal fraternity alike causing the Supreme Court to stay the acquittal of the accused on the charge of Section 8 of POCSO. The judgment has rendered that mere groping would not amount to sexual assault under Section 7 of POCSO. Such an abhorrent interpretation prima facie trivializes not only sexual assault of female minors, but disproportionately excludes male minors from seeking justice.

The minor male victims of sexual abuse constitute a large majority in India. The Bench elucidated that mere groping over the clothes of the minor would not amount to sexual assault under Section 7 and 8 of POCSO. POCSO is inherently a gender-neutral legislation providing reprieve to minors of all genders. Section 7 provides that “whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.” The words “penis, anus” annotate protection to the male victims from sexual assault. However, the case establishing the ‘skin-touch’ doctrine has significantly narrowed the scope of application of the provision.

Adoption of this exclusionary doctrine would impact both female and male victims adversely, however, where the female victim could resort to relevant provisions of IPC, the male victim is left remediless. The provisions of sexual crimes under IPC are highly gendered protecting only the woman or the girl child disenfranchising the male victims of sexual violence. Furthermore, the doctrine places the onus of proof on the prosecution per contra to POCSO. Section 29 of POCSO reverses the burden of proof and presumes the offence has been committed or abetted by the accused. If the view purported by the Bombay High Court is considered, and if the prosecution fails to satisfy the onus, the female victim can have a recourse to relevant provisions of IPC, whereas on the contrary, the male victim cannot.

The ‘skin-touch’ doctrine categorically contradicts the Model Guidelines issued by Ministry of Women and Child Development under Section 39 of POCSO which provides that “almost every known form of sexual abuse against children as punishable”. Furthermore, the Delhi High Court in Rakesh v. State without even delving into the detail of disrobing of the victim dismissed the appeal holding that mere groping of the private parts of the victim with sexual intent amounts to sexual assault under Section 7 of POCSO. Conflicting this accurate interpretation, the heavy onus placed on the victim results in narrow application. Whereupon the female victims have an alternative remedy, the abusers of the male victim are left scot-free on committing the atrocity leaving a permanent scar on the well-being of the child survivor. Ergo, mere groping would amount to sexual assault of the female victim under Section 354 of IPC but would not be sexual assault of male victim, either under POCSO or IPC. The provisions governing sexual crimes in IPC are gynocentric and neither the legislative or the judiciary have displayed any intention to take affirmative step on making the sexual offences gender neutral, despite there being categorical recommendation by the 172^nd Law Commission Report and the Justice Verma Committee Report to make rape and other sexual offences gender neutral.

This inspires little to no confidence on the state functionaries with regard to gender justice. The ‘skin-touch’ doctrine creates a very real and alienating affect of male survivors wherein, groping over clothes would not amount to sexual assault. The lack of gender-neutral sexual offence laws and such interpretation is a clear dereliction of the male survivors.

08/12/2024 0 comments 27 views

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