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Divorce

“I Think My Marriage is Ending”

by Guest Author 08/12/2024

written by Guest Author

By A ‘Common Woman’

When Arjuna went to the battlefield and realized that he must fight his loved ones, he no longer wanted to fight. His fingers trembled as his bow fell from his hand. He was depressed.

When you are depressed, you lose your will to fight. You want to self-destruct. You feel completely and utterly hopeless. If you are me, then you do not want to feel positive about a situation because you are afraid, you’ll sink lower into depression if you allow yourself to feel happy for even a moment.

I think my marriage is ending. I know the feeling – it’s familiar to me by now: exhaustion, high blood pressure, insomnia, everything feels… static. It’s like you’re a fallen soldier on a battlefield. There’s a war going on around you and you know you must fight, but you’re lying on the dusty ground, seeing blood and gore around you thinking, “What’s the point?” You want to rest but you can’t. You want to silence your mind, but all you feel is numb. Pointless. Fleeting moments of happiness, amusement, and joy come and go, as you observe the world with a heavy heart and a restless brain.

Deep down, I know my marriage was never a strong one to begin with. Sure, it carried with it the promise of a wonderful and fulfilling relationship. After all, who voluntarily enters a marriage thinking it might not last? I entered mine with hope and trepidation. I knew we had potential problems we needed to sort out, but as long as ‘we’ were a team, we would manage to overcome every challenge sooner or later, right?

Turns out, when it comes to a large number of men, or perhaps Indian men, there is no ‘we’ in a marriage. For mine too, the ‘we’ in my marriage belongs to my husband and his parents. In one of the many fights we had in the first couple of months of our marriage, I’d yelled, “You and your parents are a team, but what about me?” I don’t even remember what he said, but I highly doubt he’d have reassured me otherwise.

I have never been part of my husband’s club since we got married until the day of our impending divorce. His parents make all the decisions for their thirty-three-year-old child. What work he does at his office, what he wears to what he eats are all dependent on their wishes. He doesn’t get up from bed in the morning or go to sleep at night without hearing from them. And if you’re wondering whether he was like this on our honeymoon as well, let me tell you he canceled having a honeymoon in the first place and instead, chose to spend his vacation days hanging out with his parents. In fact, he spends all his vacation days reserved for his parents – not even one out of twenty-one days is for anyone else. And not a single one belongs to me.

I never thought I would be the girl on the internet ranting about her husband. Then again, I never thought I would be the girl who’d be contemplating a divorce when I have wanted my own beautiful love story since I was five years old. To have the perfect partner, you must be the perfect partner. So I became the most perfect version of myself I could be: got the best education from the best places, got multiple certifications, got the good job, and developed all the skills a person should have – be it cooking, taking care of pets, driving, changing a bulb, you name it. I continue to educate myself on all things that matter to him, from how to give the perfect blowjobs to how to invest wisely in high-risk investments. From doing my laundry to filing my taxes, I do everything and try to learn everything.

Yet, it makes no difference to my marriage. If my mother-in-law tells him not to eat a banana because it’ll give him ‘high cholesterol’, he won’t touch a banana. All the logic in the world given by his wife makes no difference. After a point, you think, “Did my husband want a ‘wife’ for his parents or a best friend for life?” Sadly, I know the answer and it depresses me more.

I do not want to complain about my husband. What I do want to do is ask all parents – Is this what you want, your child to remain co-dependent for the rest of your lives? What will that child do when you are too old, and he can neither talk to you nor his estranged wife and kids? Why are so many mothers hell-bent on making their children completely unsuitable for the world? Will we as a society ever change, or will you continue to ruin the lives of more women and ultimately, blame them when things fall apart?

In the end though, Arjuna had to perform his duty, his dharma, just like millions of Indian women who fight for their marriage despite society considering them the outsider in a family of parents and their son. And when they fail like the Pandava prince, they surrender the fate of their lives to Krishna, and the divine will of the universe.

Guest Author (Anonymous)

08/12/2024 0 comments 40 views

बदलते परिदृश्य में स्थिर महिलाएं

by Rajesh Singh 08/12/2024

written by Rajesh Singh

राजेश ओ.पी.सिंह

आज पूरे विश्व को एक ग्लोबल गांव की संज्ञा दी जाने लगी है अर्थात वैश्वीकरण से सारा विश्व आपस में जुड़ गया है, देशों के बीच कोई रुकावटें नहीं रही हैं, सभी देश आपस में व्यापार व अन्य संधियां कर रहे हैं और तो और इस दौर में बांग्लादेश जैसे तीसरी दुनिया के देश भी विश्व मानचित्र पर अपनी उपस्थिति दर्ज करा पाने में सफल हो रहे हैं। परन्तु वैश्वीकरण व विकास के इस दौर में भी पुरुष – महिला के बीच का भेद अभी भी जैसे का तैसा बना हुआ है और ये कम होने की बजाए ज्यादा हो रहा है।

वैश्वीकरण के इस दौर में भी समाज और परिवार चाहता है कि लड़कियां शादी करें ही करें क्योंकि आज भी समाज अकेली महिला या लड़की को स्वीकार नहीं कर पा रहा है।

शादी को प्रत्येक लड़की के जीवन का सबसे अहम संस्थान बना दिया है, वहीं यदि लड़के शादी ना करे तो कोई परेशानी नहीं होती , ना समाज को और ना ही परिवार को।

शादी ना करने वाली लड़की पर तथाकथित समाज ,परिवार व रिश्तेदार आदि ना जाने क्या क्या तंज कसते है, संस्कृति व धर्म का दबाव बनाते है, उसे महसूस करवाने की कोशिश की जाती है कि स्त्री के सिर पर पुरुष का साया होना कितना आवश्यक है, कितने ही ऐसे काम बता दिए जाते है जो बिना पुरुष के अकेली लड़की नहीं कर सकती, बार बार उसका नाम किसी भी पुरुष या लड़के के साथ जोड़ा जाता है और उसे अपमानित करने का प्रयास किया जाता है। अर्थात एक महिला को अपने हिसाब से अपनी मर्ज़ी से रहने का कोई अवसर या हक नहीं दिया जाता I उसे प्रचलित परम्पराओं के आधार पर ही जीवन जीने के लिए मजबूर किया जाता है। यदि हम तुलना करें तो पाएंगे कि 100 लड़कों को तुलना में केवल 3-4 लड़कियां ही है जो बिना शादी के रह पाने में सफल होती हैं और ये भी केवल देश के महानगरों में संभव है।

हालांकि हम देखते हैं कि इंग्लैंड के बुद्धिजीवी “जॉन स्टुअर्ट मिल” ने 1869 में लिखी अपनी पुस्तक ‘द सब्जेक्शन ऑफ वूमेन’ में लिखा कि “आज के युग में विवाह ही एकमात्र ऐसा क्षेत्र है जहां दास प्रथा अब भी मौजूद है। हमारे विवाह कानून के माध्यम से पुरुष एक मनुष्य के उपर पूरा अधिकार प्राप्त करते हैं। हासिल करते हैं मालिकाना हक और हुकूमत। हासिल करते हैं तलाक और बहुविवाह जैसी अश्लीलता की पूरी छूट।” इतने वर्षों पूर्व में ये कहा गया परन्तु भारत में स्थिति आज भी जस की तस बनी हुई है।

और लड़की की समस्याएं शादी करने तक नहीं बल्कि शादी के बाद और ज्यादा बढ़ जाती हैं I जैसे हम देखें की लड़का और लड़की दोनों शादी के बाद नौकरी करते हैं और यदि किन्हीं कारणों से लड़के का तबादला किसी दूसरी जगह हो जाए तो पूरा परिवार, रिश्तेदार और तथाकथित समाज ये आशा करता है कि उसकी पत्नी भी उसके साथ नई जगह पर जाएगी, ताकि उस लड़के को वहां पर कोई परेशानी ना झेलनी पड़े, परेशानी मुख्यत घर संभालने की, खाना बनाने की, सफाई करने की आदि। और इसके लिए यदि उस नौकरी भी छोड़नी पड़े तो छोड़ दे। इस प्रकार पति को समस्यायों से बचाने के लिए पत्नी को समस्याओं में डाल दिया जाता है, बिना उसकी रजामंदी के।

वहीं यदि इसका उल्टा हो जाए कि पत्नी का तबादला कहीं नई जगह पर हो जाए तो लगभग 100 फीसदी मामलों में उसका पति उसके साथ नहीं जाता, नौकरी छोड़ना तो बहुत दूर की बात। इस पर लड़की को समझाया जाता है कि यदि तुम नौकरी के लिए चली जाओगी तो यहां तुम्हारे पति को तुम्हारे बिना समस्याओं का सामना करना पड़ेगा। इसलिए तुम नौकरी छोड़ दो और यहीं रहो। दोनों ही मामलों में नुकसान लड़की को ही उठाना पड़ रहा है।

इस से हम देख सकते हैं कि आज भी समाज स्त्रियों को पुरुषों की परेशानियां दूर करने का केवल यंत्र मात्र मानता है।

आजकल तलाक और शादी टूटने की संख्या बढ़ रही है, क्यूंकि आजकल पढ़ी लिखी नौकरी करने वाली महिलाओं ने मौजूदा रूढ़िवादी व्यवस्था कि चुनौती देना शुरू कर दिया है, महिलाओं में इच्छाएं जागृत होने लगी है कि वो भी किसी रविवार को सुबह आराम से उठे, पूरा दिन आराम करे, अखबार पढ़े और उनके पति घर के सारे काम करे, परन्तु महिलाओं की ऐसी इच्छाओं से पुरुषों को परेशानी हो रही है इसलिए उनके पास एक ही विकल्प बचता है कि जब काम खुद ही करना है तो फिर इसके साथ रहना ही क्यों है।

परन्तु पुरुष ये नहीं देखते कि जब पुरुष और महिला दोनों नौकरी करते हैं तब महिला को नौकरी के साथ साथ घर के कार्य भी करने पड़ते है इसलिए उस पर काम करने की दोहरी जिम्मेवारी और भार आ जाता है और जब कभी भी वह अपना भार कम करने कि सोचती है तब उसे तलाक जैसी धमकियां मिलती हैं, तलाकशुदा महिला को समाज में अपमानित नज़रों से देखा जाता है, जगहों जगहों पर तरह तरह की मनगढ़ंत बातें घड़ी जाती है और उसके चरित्र पर टिका टिप्पणी की जाती है। परन्तु इस सबके बावजूद अब महिलाओं ने अपने हकों के लिए बोलना शुरू कर दिया है बिना इसकी परवाह किए की समाज क्या कहेगा।

समाज और परिवारों की ऐसी संकीर्ण सोच के चलते देश का पूर्ण रूप से विकास नहीं हो पाता क्योंकि इससे आधी आबादी को वर्जित किया जा रहा है। यदि कोई समाज या देश पूर्ण रूप से विकसित होना चाहता है तो आवश्यक है कि महिलाओं को जीवन के हर स्तर पर सहयोग किया जाए और जीवन के प्रत्येक क्षेत्र में उन्हें उनकी भागीदारी दी जाए।

08/12/2024 0 comments 28 views

Kerala HC Declares Marital Rape as a Ground for Divorce

by Guest Author 08/12/2024

written by Guest Author

Mehreen Mander

Last week, a Division Bench of the Kerala High Court in Mat. Appeal No. 151 of 2015 held that marital rape is a good ground to claim divorce. The Bench comprising Justice Muhamed Mustaque and Justice Kauser Edappagath dismissed a set of appeals filed by the husband challenging the decision of the Family Court, recognizing that “a husband’s licentious disposition disregarding the autonomy of the wife is marital rape” which amounts as physical and mental cruelty. The appeals were preferred by the husband seeking against a judgment of the Family court granting a divorce on grounds of cruelty. The husband’s petition seeking restitution of conjugal rights had also been dismissed.

Facts

The facts of the case were as follows: The appellant-husband upon failure of a business started subjecting the wife to constant harassment demanding money from her family, and on various occasions the father of the wife has given him approximately 77 lakhs. Further, the respondent had been subjected to physical harassment and sexual perversion. The appellant husband has committed forceful sex on numerous occasions – when she was sick and bedridden, when his mother expired and even in front of their daughter. She had also been subjected to unnatural sex against her will. Further, the husband was in an illicit relationship with the caretaker of the apartment. The family court had granted divorce on grounds of mental and physical cruelty.

Observations of the Court

The Division Bench while rendering its judgment observed that “sex in married life must reflect the intimacy of the spouse”, and in the present case, the sexual perversions the respondent was subject to was in disregard of her wishes and feelings. Further, the Division Bench observed that marital rape is premised on the patriarchal notion of the husband that the wife of the body owes to him. Such a notion, has no place in a modern social jurisprudence which insists on treating the spouses in marriage as equal partners.

The court recognized that “marital privacy” is connected to individual autonomy and any intrusion into this space would diminish this privacy. That a violation of bodily integrity is a violation of individual autonomy, which is protected as a fundamental right. Thus, the court recognized that “treating wife’s body as something owing to husband and committing sexual act against her will” is marital rape which is to be construed as an invasion of marital privacy. The Bench acknowledged that while marital rape is not criminalized in the Indian penal jurisprudence, that by itself does not deter the court from recognizing it as a ground for divorce. Marital rape essentially constitutes physical and mental cruelty, which is a ground for divorce under section 13(1)(i-a) of Hindu Marriage Act,1955 and Section 27 (1) (d) of Special Marriage Act, 1954.

Thus, the appeal was dismissed.

The Position of Law on Marital Rape

The Indian state is one among only 36 countries that refuse to bring marital rape under the purview of penal consequences. Section 375 of the Indian Penal Code, 1860 that defines rape categorically excludes instances of sexual intercourse by a husband with his wife who is aged above 15 years. The age of consent was later raised to eighteen years by the Criminal Amendment Act of 2013. The Supreme Court in Independent Thought v. Union of India also held that a girl child below 18 years of age was incapable of giving consent for sexual intercourse. The courts have however refrained from getting into the question of illegality of marital rape. This implies that adult wives can still be legally raped by their husbands under the current penal law in India.

The Justice Verma Committee set up in the aftermath of the 2012 Nirbhaya case recommended criminalization of marital rape. In 2017, a parliamentary panel set up to consider the Committee’s recommendations observed that criminalizing marital rape would bring the entire family system under great stress. Thus, it has refused to remove the exception in Section 375 which allows the husband to legally rape his major wife. The government has repeatedly insisted the sacrosanct nature of the institution of marriage to justify the exception.

It is pertinent to juxtapose such conceptions of marriage against cases where rapists are asked to marry rape survivors. Recently, while hearing a case against Mohit Subhash Chavan, a public servant who was accused to repeatedly raping a minor girl was asked by former Chief Justice of India SA Bobde if he intended to marry her. This is not an isolated instance. Rapists often marry the survivors to escape penal consequences under the persuasion of village elders or relatives. Judges too are persuaded by the arguments of stigma and honor. In some cases, rapists have deserted the survivor after marriage.

The apex court in judgments like Lillu Rajesh and others v State of Haryana has observed that a women’s supreme honor is “her dignity, honour, reputation and chastity.” That this supreme honor is defiled and degraded by the act of rape and thus renders the victim helpless and unmarriageable, is repeated in many judgments such as Deepak Gulati v. State of Haryana. Courts routinely advise marriage between the rapist and the survivor as a compromise – to save the woman from the resultant stigma and social rejection, and the man from punishment, especially in those cases where the victim has become pregnant.

Conclusion

It is very telling about the Indian jurisprudence that considers marital rape is essential to preserve the sanctity of the institution of marriage on one hand, and makes the rape survivor marry her rapist on the other. The jurisprudence at some level recognizes that a woman must suffer the worst form of degradation and harassment as a part of the regular course of marriage. The cost of preserving the institution of marriage must be the woman’s autonomy, and such cost must be paid by what the court itself recognizes as the worst form of defiling of her “supreme honour.” The only way to contradict this inference is to consider the married woman as the chattel of her husband, which is an understanding grossly violative of the fundamental right of equality.

In light of this, the Kerala High Court judgment becomes important. It recognizes autonomy as a part of privacy which is a fundamental right, and extends it to the private sphere of marriage and household which state has often refused to do. It in fact goes a step further in acknowledging the legal heteronomy and paternalism in the family and divorce laws of the country. Recognising marital rape as grounds for divorce opens the door for many women who suffered without recourse so far.

08/12/2024 0 comments 24 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

Women In Our Country

by Elsa Joel 08/12/2024

written by Elsa Joel

DR. ELSA LYCIAS JOEL

In our society, I hear a hypocritical outcry of deteriorating traditional values when a woman walks out of her marriage. But no one raises voice or limbs in support of the larger number of financially dependent women struggling in bad marriages without rushing to get divorced. Young and old professionals are more prone to and professional at calling off their marriages and only women continue to shoulder the blame. Divorce isn’t the flavour of any season. It happens not because women are uncultured, characterless or non religious but because they are educated, aware and have a strong sense of self-esteem. Institution of marriage will be respected minus incompatibility, temperamental differences and intolerance.
Societal and familial pressure or trepidation of being frowned upon cannot force a man and a woman to live together. Many divorces are filled with bitterness, hostility and rancor because men assume mud fighting and slander can hurt women in a reputation-conscious society. When women encounter problems in our society, tackling them calls for not loud voices, processions or placards but an objective analysis of reasons which underlie them. Not by law makers and enforcers but by every other woman and citizen who adorns different roles to women in their lives.
We always find it too improper to mention the real cause of women subjugation, especially if its religion or scriptures. As a result, a culture of pseudo analysis and pseudo action becomes the norm. We have been seeing and hearing expressions like ‘women reservation bill’, ‘Nirbhaya fund’, ‘special woman safety programme’ and so on being bandied about as part of political debates and talk shows. Politicians, as we all have seen, heard and known are supposedly well-trained suitably qualified people who position themselves right at the centre of action with the explicit purpose of not putting anything into action and get away with anything in politics.
Countries which have been able to make some real, visible progress in women safety and empowerment are those whose leaders and citizens have been able to confront the problems head-on to find solutions. The government of Iceland has been funding UNIFEM (United Nations Development Fund for Women) for the past three years to promote gender equality and Iceland stands number one on the list of safest countries for women. By almost every metric compared to the rest of the world, Denmark is very safe and it comes second. Denmark also has a history of finishing as the #1 happiest nation in the world according to statistics. Gender equality is important to the Nordic countries: Political parties in Sweden, Norway and Iceland all have gender quotas, which promote female candidates for top roles. As such, every country has their own ideals of equality between men and women. But if one understands equality as just a respectful treatment minus violence, abuse and harassment another, we can’t call it equality until there is a gender pay gap or glass ceiling.
Agreed, men and women are different biologically and psychologically. Women play certain roles better than men and vice versa to complement one another, be it home or work place. Never to prove one is dominant over the other.
In India, the governments that came and went dragged their everything on passing the women’s reservation Bill for a decade. Rape storms batter our country and #Metoo -a -day routine followed by the blow-by-blow breaking of news by the media calls for a closer and quicker look of where we stand as the victim rarely an opportunistic one or the assailant, many a time the one with money and muscle power. Guilt is presumed; innocence has to be proved beyond all reasonable doubt makes the concerned lie low and patient till they die or disappear. Worse still, rapists will brazenly continue raping unmindful of reprisals which they know how to handle and sometimes adorn seats in legislative assemblies and Parliament too. With such brats at the top, not just lofty things but even normal living for Bharath mathas and putris of all age groups become a dream. Seems like it’s not just ‘United we loot’ but ‘United we molest and rape’.
I hear desi folks scream, ‘increased divorce rates’. I’ve heard mothers and grandmothers warning girl children differently such as, “control your anger, you are a girl”. Such social conditioning of girl children in our society never needed any extra effort from anybody because religion is an important part of our country’s culture. And all religions profess and practice male dominance directly or indirectly. All over our spiritual India, women fast on sacred days to ensure their husbands’ longevity but there is nothing similar in the scriptures that expect a man to follow any ritual. In spite of these rituals, many studies and statistics show that women outlive men for reasons known to all. Still, women attempt these rituals out of fear because they know what widowhood means in a country like ours. Most religious traditions have subjugated women.
Sexism is intrinsic to Hinduism and Buddhism. The Abrahamic religions of Judaism, Christianity and Islam have been worse. So much of howling and screaming is done against the objectification of women without realising thatnothing will change until scriptures are re-written.
Verse 2-213 of Manusmriti ‘ “Swabhav ev narinamiha dhooshnam…’ is translated as “It is the nature of women to seduce men in this world; for that reason the learned are never unguarded in the company of females”.
Verse 5/151 when translated goes as this “Girls are supposed to be in the custody of their father when they are children, women must be under the custody of their husband when married and under the custody of her son as widows. In no circumstances is she allowed to assert herself independently”.
Manusmriti is in a way too primitive.
The Bible’s decree of male supremacy is known to the world. Most blessed mothers in the Bible are recorded to have given birth to sons only. Yes, a son as a firstborn is equated to a great blessing. The story of the adulteress who Jesus forgave and saved from being stoned is an example of how a combination of sex, a woman, public disgrace and double standard worked since biblical times. There was no mention of the man involved in the act. Without any mentioning the uphill battle remains steep for Muslim women. It is indisputable that women are excluded from Judaism’s most hallowed rituals and practices helping us understand that Judaism privileges are fundamentally male.
Sabarimala hullabaloo is a case in point. If discrimination to enter a temple is based on sexual orientation and caste , constitutional Articles related to freedom of religion and essential religious practices must be read to have a wider meaning to signal a new era of transformative constitutionalism. Freedom, rights and values embodied in our constitution should not be let to freeze in time. That would mean no possibility of positive change and progress to changing societal needs. Places of male gods cite menstruation as the main reason for denying women their religious freedom. How come theormative descriptive imagery and pronouns for god are male enabling people to sculpt them that way.
Being a Tamilian I pondered over ‘kallanalum kanavan pullanalum purushan’. It means even if the man is as insensitive as a stone or as useless as a blade of grass he is still ‘THE HUSBAND’, a visible god to the wife. Who else but a Male chauvinist must have uttered this proverb! And another insinuating comment from men goes as “Ellu na ennai ya vandu nikkanam” translated as “Do more than what is expected of you” or “going the extra mile” conveys the typical male attitude. Tamil literature has enough stories praising devout wives. Nothing wrong about it. But sometimes imaginations soar so high making stories sound ridiculous. One example is Vasuki Ammaiyar, a “Pathiviradhai” cooking delicious meal out a bag of sand given to her by Thiruvalluvar. Making such a story on a man of great intellect isn’t justifiable. And the pail that hung in mid air as this “Pathiviradhai” rushed to address her husband’s call half way through drawing water from a well is another story to motivate devotion in women.
Bharath Matha is one country where women are worshipped yet discriminated against and abused. It’s a national shame that despite more and more laws and funds, governments of secular, democratic and pluralistic India finds it difficult toensure that all sections of citizens feel equal, protected and secure. Were goddesses spared! Parvati created a boy to guard her doors from Shiva. Sita had to walk through fire to prove her loyalty. Unless mythologies are retold and understood in the right spirit, if not rewritten, these will be used to normalize or rationalize different forms of oppression or abuse, of course by the wrong people.
Kathua, Hathras, Unnao and many more can’t be forgotten, forgiven. Meanwhile, Rajvir Singh Pahalwan and Surendra Nath Singh ought to be educated on what amounts to rape. How does Surendra Nath Singh know that sanskar hasn’t been instilled in victims? The Hathras district court was forced to stop the trial proceedings after Hari Sharma and his son Tarun Hari Sharma, one of the advocates of the accused, created a hullabaloo and issued threats. But how was the father- son duo handled after their misbehavior is yet to be known. Being blessed with common sense, I guess, interrupting court proceedings by words and deeds should be considered as gross criminal contempt of Court.

08/12/2024 0 comments 28 views

Bharat Mata – Is This Appellation Justified?

by Guest Author 08/12/2024

written by Guest Author

By DR. Elsa Lycias Joel

A hypocritical outcry of deteriorating traditional values is often heard when a woman walks out of her marriage whereas the larger number of financially dependent women struggling in bad marriages without rushing to get divorced are ignored. Divorce isn’t the flavour of any season. It happens not because women are uncultured, characterless or non-religious but because they are educated, aware and have a strong sense of self-esteem. Institution of marriage will always be respected but minus prejudice and intolerance. Societal and familial pressure or trepidation of being frowned upon cannot force a man and a woman to live together. Agreed, many divorces are filled with bitterness, hostility and rancour because it is assumed mud fighting and slander can hurt only women.

When women encounter problems in our society, tackling them calls for not loud voices, processions or placards but an objective analysis of reasons which underlie them. Not by law makers and enforcers alone but by every other woman and citizen. We have been seeing and hearing expressions like ‘women reservation bill’, ‘Nirbhaya fund’, ‘special woman safety programme’ and so on being bandied about as part of political debates and talk shows. Politicians, as we all have seen, heard and known, are supposedly well- trained suitably qualified people who position themselves right at the centre of action with the explicit purpose of not putting anything into action and get away with anything in politics.

Countries that make real, visible progress in women safety and empowerment are those whose leaders and citizens have been able to confront the problems head on to find solutions. The government of Iceland has been funding UNIFEM (United Nations Development Fund for Women) for the past three years to promote gender equality and Iceland stands number one on the list of safest countries for women. By almost every metric compared to the rest of the world, Denmark is very safe and it comes second. Denmark also has a history of finishing as the #1 happiest nation in the world according to statistics. Gender equality is important to the Nordic countries: Political parties in Sweden, Norway and Iceland all have gender quotas, which promote female candidates for top roles. As such, every country has their own ideals of equality between men and women. One can’t call it equality until there is a gender pay gap or glass ceiling.

Men and women are different – biologically and psychologically. Women play certain roles better than men and vice versa to complement one another, be it home or work place. Different does not mean unequal and no one gender needs to act dominant.

In India, the governments that came and went made much hullabaloo about women’s reservation, without being able to achieve anything practical in this direction.

Rape storms batter our country, followed by the blow-by-blow breaking of news by the media. Guilt or innocence is presumed. Worse still, rapists continue raping, unmindful of reprisals which they know how to handle and sometimes adorn seats in legislative assemblies and Parliament too. Seems like it’s not just ‘United we loot’ but ‘United we molest and rape’.

Girl children are warned differently such as, “control your anger, you are a girl”. Such social conditioning of girls in our society never needed any extra effort because religion is an important part of our country’s culture. And all religions profess and practice male dominance directly or indirectly. All over our spiritual India, fasting is mostly meant only for women. We also know what widowhood means in a country like ours, don’t we? For aeons religious traditions have subjugated women.

Sexism is intrinsic to Hinduism and Buddhism. The Abrahamic religions of Judaism, Christianity and Islam have been worse. Manusmriti is way too primitive. The Bible’s decree of male supremacy is known to the world. Most blessed mothers in The Bible are recorded to have given birth to sons only. The story of the adulteress who Jesus forgave and saved from being stoned is an example of how a combination of sex, a woman, public disgrace and double standard worked since biblical times. There was no mention of the man involved in the act. Without any mentioning the uphill battle remains steep for Muslim women. It is indisputable that women are excluded from Judaism’s most hallowed rituals and practices. Sabarimala saga is a case in point. If discrimination to enter a temple is based on sexual orientation and caste, constitutional Articles related to freedom of religion and essential religious practices must be understood better to signal a new era of transformative constitutionalism. Freedom, rights and values embodied in our constitution should not be let to freeze in time, lest we see no possibility of positive change and progress as per changing societal needs. Places of male gods cite menstruation as the main reason for denying women their religious freedom. How come the normative descriptive imagery and pronouns for god are male, enabling people to sculpt them that way!

I also ponder over ‘kallanalum kanavan pullanalum purushan’ which means even if the man is as insensitive as a stone or as useless as a blade of grass he is still ‘THE HUSBAND’, a visible god to the wife. Who else but a male chauvinist must have uttered this proverb! Tamil literature has enough stories praising devout wives. Nothing wrong about it. But sometimes imaginations soar so high making stories sound ridiculous. One example is Vasuki Ammaiyar, a “Pathiviradhai” cooking delicious meal out a bag of sand given to her by Thiruvalluvar. Making such a story on a man of great intellect isn’t justifiable. And the pail that hung in mid air as this “Pathiviradhai” rushed to address her husband’s call half way through drawing water from a well is another story to motivate devotion in women. Unless mythologies are retold and understood in the right spirit, if not rewritten, these will be used to normalize or rationalize different forms of oppression or abuse, ofcourse by the wrong people.

Bharat Mata i.e. India is a country where women are worshipped yet abused. It’s a national shame that despite more and more laws and funds, governments of secular, democratic and pluralistic India find it difficult to ensure that all sections of citizens feel equal, protected and secure. Kathua, Hathras, Unnao and many more can’t be forgotten, forgiven. Meanwhile, Rajvir Singh Pahalwan and Surendra Nath Singh ought to be educated on what amounts to rape. How does Surendra Nath Singh know that sanskar hasn’t been instilled in victims? The Hathras district court was forced to stop the trial proceedings after Hari Sharma and his son Tarun Hari Sharma, one of the advocates of the accused, created a hullabaloo and issued threats. But how was the father- son duo handled after their misbehavior is yet to be known. Being blessed with common sense, I guess, interrupting court proceedings by words and deeds should be considered as gross criminal contempt of Court.

As far as the sensational Pollachi sexual assault and extortion case is concerned there has been very little progress and Pollachi Jayaraman resigning from his 50 years of political career solely rests on the criminal justice system. The motive behind revealing the name of the victim by the then Coimbatore district Superintendent of Police (SP) R. Pandiarajan is not established until date. Whether the SP was pressing for a transfer shouldn’t be anybody’s wild guess!

Musings enough, while Bharat Mata continues to sob? Now, will we do something about this – women, what say?

Interesting fact though – did you know that it was Bangla Mata, not Bharat Mata in Bankim Chandra’s original, as revealed by Netaji’s grand nephew. Here : https://sabrangindia.in/article/it-was-bangla-mata-not-bharat-mata-bankim-chandras-original-netaji-grand-nephew.

What’s in the name – nothing much, really. So keep calling India – bharat mata, and do nothing about women’s actual state in India. Unless, we really do decide enough is enough.

08/12/2024 0 comments 22 views

Supreme Court entertains a PIL Seeking Directions For Uniform Grounds Of Divorce For Women Of All Faith

by Guest Author 08/12/2024

written by Guest Author

#Newsbyte #1MinuteRead #UniformCivilCode #SupremeCourt #law

In a Public Interest Litigation (PIL) filed by Lawyer Ashwini Upadhyay and argued by Senior Advocates Pinky Anand and Meenakshi Arora, the bench headed by CJI SA Bobde issued notice to the Center today, as regards uniform grounds of divorce and alimony irrespective of religious affiliations for women.

Initially CJI Bobde said that it is for Center to come up with a Uniform Civil Code and commented that the Supreme Court is admitting PILs with caution. Senior Advocates Ms. Anand and Ms. Arora emphasized that the Court should step in to protect women’s rights. They said “Religions may be treating women differently as per the Personal law sanctions but when religious customs violate the fundamental right to equality and non-discrimination, the Courts must step in to protect women’s rights.”

They further pointed out that currently women from different religion have to proceed under different laws for seeking divorce. Hindu, Buddhist, Jain and Sikh women have to avail the provisions of the Hindu Marriage Act 1955 ; Christian, Muslim and Parsi women have to seek divorce under their own personal laws and people who are from different religion and who have married under the Special Marriage Act have to seek divorce therein. Similarly, those who have married under the Foreign Marriage Act, 1969 have to divorce therein. They prayed that grounds of divorce should be gender neutral and religion-neutral.

At a time where there are concerns regarding the Uniform Civil Code, how will this legal route via the Supreme Court to bring in elements of Uniform Civil Code be received remains to be seen.

08/12/2024 0 comments 14 views

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Divorce

“I Think My Marriage is Ending”

बदलते परिदृश्य में स्थिर महिलाएं

Kerala HC Declares Marital Rape as a Ground for Divorce

Facts

Observations of the Court

The Position of Law on Marital Rape

Conclusion

Marital Rape: A Social and Legal Paradox

Women In Our Country

Bharat Mata – Is This Appellation Justified?

Supreme Court entertains a PIL Seeking Directions For Uniform Grounds Of Divorce For Women Of All Faith

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