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marital rape

The Great Indian Wedding Gifts

by Guest Author 08/12/2024

written by Guest Author

By Ishani Dash

I was around five or six when my paternal uncle married my paternal aunt, prompting a huge celebration in the family that people from all parts of the state of Odisha came to attend. I do not remember the size of the wedding; only the joy of meeting a new family member who I felt was sure to love and care for me. It was years later I learned that my grandparents had one strict rule for both their sons’ weddings that they printed on all wedding cards: “Please bring only blessings, no gifts”.

It took me several more years to understand the significance of this statement. In the meantime, I attended many Indian weddings, big and small, enjoying their extravagant displays and/or beautiful simplicity. Over time, I noticed things I had never bothered to see: the system of give-and-take that accompanies many of our great Indian weddings. A large majority seemed to really care what gifts they received and placed those gifts as the defining factor in understanding the strength of their relationships.

In the years since, I have asked deeper questions to the people who have gotten or are about to get married: what importance does a wedding gift hold in your life? Have familial relationships been made or broken due to the type and size of gifts exchanged? How do you resolve conflicts that arise from holding values or ideas that do not subscribe to marital inequity?

Don’t get me wrong – I love wedding gifts, or rather, I love gifts; carefully selected tokens of affection are my love language. I understand that gifts are part and parcel of weddings. My problem is not with gifts; it’s with obligations. Specifically, the obligations for gifting that arise from a groom’s side of the family. These ‘expectations’ (spoken or unspoken) become a euphemism for a darker reality in many traditional weddings, particularly in arranged marriages: a misnomer for the word-we-dare-not-say-out-loud. But here we are, calling it what it is: dowry demand.

The origins of dowry in India are heavily debated. While it is possible that women were provided dowries to secure their comfort with their in-laws, this practice was more or less distorted when British laws prohibited women from owning property. Now a crime under the Dowry Prohibition Act of 1961, dowry has largely become a ‘socially acceptable’ crime as long as it does not involve dowry beatings or deaths: verbal comments about how a bride’s family could have afforded to buy more gold jewelry or household items are well tolerated, even encouraged. A few years ago, researchers Jeffrey Weaver and Gaurav Chiplunkar noticed an alarming trend in their study: dowry payments in India made in the last fifty years amounted to nearly a quarter of a trillion dollars! Accordingly, the amount of dowry expected is now linked to the quality of grooms, driven by education and job opportunities. In other words, if you want to pay off your son’s student loans, get him married off and casually put ‘expectations’ on the table. If the expectations do not match, let your daughter-in-law know that you are very disappointed with the lack of ‘respect’ that a groom’s family surely deserves – after all, they happened to give birth to a boy! And raised him to be a high-quality one too.

In a country where gender reveal is banned across all medical institutions, the relentless pursuit of male offspring continues, fueled by the insidious practice of dowry. ‘Marital rape’ has a separate definition from ‘rape’ because it is not considered a crime just because it happens to take place within the confines of a marriage. We hear about the Taliban’s extreme laws prohibiting women from even hearing other women’s voices and call it gender apartheid, but we refuse to acknowledge the subtle ways we still stereotype genders in archaic norms. In our infinite wisdom, we have calmly accepted actions that keep a married woman’s positioning in society as subjugated to her husband’s as normal or acceptable.

Today, let us call out all those practices. Do you critically examine a bride’s wedding jewelry at weddings? If the bride does not wear enough jewelry, do you view it as some form of disrespect or shame? Do you ask for gifts under some pretext or expect them from your daughter-in-law’s parents? It’s important we reflect on these questions. Our laws may have criminalized dowry, but the sense of entitlement continues, partly because we accept emotional abuse as the status quo in our marriages. A friend once told me her husband commented on their wedding night that a birthday party in their family was held more lavishly than the wedding her parents threw for him! It made me wonder who decided the measure of one’s love or respect was the grandness of one’s celebratory affairs. After all, isn’t one’s wedding day the least important day of their married life? It’s everything that comes after the excitement and nerves of a wedding saga that truly sets the foundation for the rest of a couple’s life.

In a world where all genders are finally being recognized and heteronormative weddings are no longer unthinkable, why have we not moved away from the practice of spending indulgently on a groom and his family for being kind enough to marry a woman? A custom that begins a marriage on uneven grounds, despite both parties entering the marriage equally in every aspect, is nothing but a relic of a bygone era that exploited women and took pride in the fact that less than 1% of Indian women could choose to leave an unhappy home.

Do straight Indian men truly believe they need to be paid, in gifts, cash, clothes, or otherwise, to marry somebody? Unsurprisingly, many do not treat their wives as partners but continue to dismiss her wishes, feelings, and needs – seeing them as trivial or mere ‘wants’. After all, where the foundation of a marriage is not mutual respect, why on earth would a husband suddenly treat his wife any differently after a wedding thrown in his honor?

The sorry state of affairs often continues, unfortunately, well into a marriage, where many women are slowly stripped of their independence until they have nowhere to go and nobody to lean on. Just search the number of disturbed people asking on Quora or Reddit about their in-laws gatekeeping wedding gifts or demanding to keep their bridal jewelry in their lockers for ‘safety reasons’. A woman who tries to leave such a household is met with uncooperative police, unsupportive family members, and a laidback justice system that does little to alleviate her torment. This is not just limited to joint family households in India but is very much a part and parcel of the lives of several non-resident Indians (NRIs) living away from home. It is possible that NRIs are easier to manipulate as they are unaware of the societal progress among their peers and consider ‘Indian customs’ to be their ties to a home they chose to leave. We don’t say the word ‘dowry’ in India, but we sure have learned to hide it in the form of ‘gifts’, ‘expectations’, and ‘respect’. If women refuse to comply, then it is ‘disrespect’. If they agree, it is ‘tradition’.

The feminist in me would break apart if I didn’t hear about people who no longer spend their parents’ lifelong savings on weddings, but plan and fund it themselves; people who celebrate their wedding at a senior citizens’ home; and people who marry the people they love, regardless of their gender. I see a change that I hope will permeate every corner of society, cutting across our man-made definitions of religion, caste, class, gender, skin tone, educational qualifications, and everything else that divides and rules our minds and hearts. But with each heart-melting story of progress, there are countless others resigned to their societal fates.

My only question to all those who continue to threaten, or what they would call strongly request, a woman to show off her parents’ hard-earned money in the form of expensive jewelry and other gifts is: Do you truly believe a marriage built on a foundation of coercion is a marriage at all?

To everyone else entering a marriage this season, please do not let patriarchy win. Please teach your children that self-respect and dignity are non-negotiable. If you like flaunting your jewelry, by all means, do so. But don’t do it out of any sense of obligation, believing this ‘small ask’ will be followed by a marriage based on equality, mutual respect, and trust. It will not happen. A person who loves you will not make you live your life for society unless they are gaining something out of it. And nobody who truly respects you will choose to make you uncomfortable and unheard, least of all your spouse.

My grandparents, I believe, were ahead of their times when they refused to receive wedding gifts for their sons’ weddings. Their ideologies, principles, and values run deep in the family tree. One day, if I have a child who decides to get married, I will do my part to help ensure that their wedding, and hopefully their married life, is nothing but truly and completely, a union of equals.

08/12/2024 0 comments 32 views

A Sign of Obsoleteness: Marital Rape exception in the Bhartiya Nyaya Sanhita

by Guest Author 08/12/2024

written by Guest Author

By Lauren Prem

The marital rape exception (referred to as the ‘MRE’ by the Delhi HC) has been a contentious issue in the legal world. The introduction of new criminal laws, that have come into effect on 1^st July, have fuelled the debate further. The Bhartiya Nyaya Sanhita (hereinafter referred to as the ‘BNS’), as the ruling government claims, intends to wipe out archaic traces of the colonial era embedded in the IPC. However, marital rape being retained in the new law, as an exception to the rape offence, has attracted criticisms that question the very purpose of the criminal law overhaul in the country. This article aims to evaluate judicial views on this matter while making a strong case for deleting the MRE to uphold individual liberty.

What Does The BNS Say?

Clause 63 of the BNS provides for an exception to rape which states that ‘sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.’ The corresponding provision in the IPC that also provides for MRE uses the term ‘the wife not being under fifteen years of age’ in place of ‘the wife not being under eighteen years of age.’ Hence, the only change in the BNS has been an increase in the wife’s age from fifteen to eighteen to avail the exception. Basically, the judgement in Independent thought v UOI, (AIR 2017 SC 4904) has been reaffirmed by increasing the wife’s age to eighteen. However, BNS still retains the crux of the provision in the IPC as regards MRE, that was a subject of heavy debate and criticism.

Judicial Opinions And The Test Of Constitutionality

The judicial views in this matter are divergent and rarely reflect any consensus. Due to this, the matter was raised before the apex court. The recent petition Hrishikesh Sahoo v. State of Karnataka (Case no. SLP(Cr.) 4063-4064 of 2022) challenging the MRE, to be heard by CJI DY Chandrachud and Justices J.B. Pardiwala and Manoj Mishra, is currently pending before the apex court. This part of the article aims to examine the previous arguments considered by the courts regarding the MRE and analyse the validity of judicial opinions in light of fundamental rights enshrined in the constitution.

The Supreme Court, has thus far, failed to settle the issue regarding the constitutionality of the MRE, even when the opportunity presented itself in the Independent Thought v. Union of India and Anr. case (AIR 2017 SC 4904). In this case, the Supreme Court limited itself to the question as to whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape? Exception 2 to Section 375 of the Indian Penal Code, 1860 (the IPC) answers this in the negative. The Supreme Court held that sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. However it refused to conside the issue of whether sexual intercourse with one’s wife, who is above 18 years of age, without her consent, amount to marital rape.

The Delhi High Court (2022) in a recent case, however, has delivered a split verdict after receiving four petitions challenging the constitutionality of the MRE as violative of articles 14, 19(1)(a) and 21. This case challenged the MRE provision in the IPC, which is slightly different from the corresponding BNS provision in the aspect of the wife’s age. In this case, while Justice Rajiv Shakdher held in favour of declaring Exception 2 to Section 375 of IPC as unconstitutional, Justice Hari Shankar ruled against striking down MRE. Justice Shakdher amongst many arguments he gave in favour of declaring MRE unconstitutional, also said – while sex workers have been invested with the power to say ‘no’ by law, a married woman has not. This petition is now challenged before the Supreme Court.

Two major contentions presented in the petition are relevant for the MRE provision in the BNS as well. Firstly, the MRE is violative of article 14 as it metes out different treatment to married and unmarried women as regards the offence of rape. Secondly, the MRE violates the right to bodily autonomy of a woman read under article 21 – right to life. Thirdly, the MRE is violative of the right to freedom of speech and expression under article 19(1)(a) as this right encompasses within itself, the right of a woman to assert her sexual autonomy. Justice Rajiv Shakdher ruled in favour of the Petitioners.

On the other hand, Justice Hari Shankar in this dissent relied on two major arguments. Firstly, the MRE is not violative of article 14 because there is a reasonable classification made under the said article. In other words, the distinction between married and unmarried women as regards the offence of rape, is a reasonable as well as a permissible classification.

The doctrine of reasonable classification consists of two ingredients – the classification made between two classes must be intelligible and there must be a nexus between the classification made and object sought to be achieved by such classification. Further elaborating the argument, he held that the classification between married persons and unmarried persons is intelligible and that the classification bears a nexus with the object of preserving the sanctity of marriage as an institution. In simple terms, he suggests that a husband cannot be termed as a ‘rapist’ as it would erode the sanctity of marriage as an institution, thereby indicating his inclination towards placing marriage at a higher pedestal.

Secondly, the Attorney General representing the state argued that the MRE is not violative of a woman’s right to bodily autonomy as there are other remedies like divorce, available to the affected wife (para 312). The Attorney General argued that the MRE is not violative of a woman’s right to freedom of speech and expression because consent for sexual intercourse obtains permanence through marriage itself.

The verdict passed by the judges reflect opposing views, representing two sides of the debate concerning the MRE.

Additional Arguments And Commentary

The arguments advanced by the Attorney General representing the state, reflects a tilt towards the institution of marriage and a failure to strike a balance between protecting state institutions and upholding individual rights. One of the broad arguments advanced by the Attorney General is that the husband acquiring consent for sexual intercourse is ‘not in conformity with the Hindu religion.’ Criminal laws in India are secular and are framed based on how a particular society views crime, rather than catering to the needs of any particular religion. Using religion as a means to propel state-sanctioned violence will destroy the secular fabric of our nation.

Justice Hari Shankar, in his judgement, mentions that judges must honour the legislature’s exclusive domain and refrain from meddling with the MRE as it was drafted with a purpose of protecting the institution of marriage. However, striking down the provision as unconstitutional, is well within the domain of the judiciary – an institution tasked with playing a watchdog role to protect the constitution.

Several judges have used the same reasoning regarding the ‘limits of judicial powers’ to refrain from addressing the MRE issue. The legislature, in drafting the BNS act, severely missed an opportunity to resolve this long-standing issue and uphold women rights.

Conclusion

This article has explored various facets to the Marital Rape Exception (MRE) debate – one that has erupted once again since the effectuation of the new criminal laws on July 1, 2024. There is a strong case for its deletion on grounds that it hinders women from completely exercising their rights. The MRE dilemma adds perplexity to the legal debate especially that the debate involves consideration of social perspectives, such as what social institutions like marriage mean. Additionally, debate sheds light on the need for stronger judicial voices – ones that uphold fundamental rights guaranteed under Part III of the Constitution, rather than being held back by obsolete societal norms that handicap women entering social institutions, from accessing justice.

08/12/2024 0 comments 31 views

Marital Rape in India

by Guest Author 08/12/2024

written by Guest Author

By Shubh Jain

“Injustice anywhere is a threat to justice everywhere.” – Martin Luther King

Domestic violence in India is an entrenched problem, and it has only been exacerbated in recent years. According to the National Crime Records Bureau’s (NCRB) ‘Crime in India’ 2019 report, about 70% of women in India are victims of domestic violence. One such manifestation of this domestic violence is Marital rape. Marital rape, forcing your spouse into having sex without proper consent, is an unjust yet not uncommon way to degrade and disempower women. Today, Marital rape has been impeached in more than 100 countries, but, unfortunately, India is one of the only 36 countries where marital rape is still not criminalized^¹. Even though many legal amendments have been done in criminal law for the protection of women, the non-criminalization of marital rape in India undermines the dignity and human rights of women, and it is also a big question mark on the legislature in respect to what the legislature is doing for saving right in of woman in marriage.

Marital rape is a sensitive topic, challenging to measure anywhere, but even more so in India – where most sexual violence is believed to occur within families and goes unreported. According to the Indian government’s latest National Family Health Survey, about 30% of Indian women aged 18-49 reported having experienced spousal violence. In terms of sexual violence, the average Indian woman is 17 times more likely to face sexual violence from her husband than from anyone else, according to the survey of 724,115 women.

Status of Marital Rape in India

The definition of rape codified in Section 375 of the Indian Penal Code (IPC) includes all forms of sexual assault involving non-consensual intercourse with a woman. Non-Criminalization of marital rape in India emanates from Exception 2 to Section 375. However, Exception 2 to Section 375 exempts unwilling sexual intercourse between a husband and a wife over fifteen years of age from Section 375’s definition of “rape” and thus immunizes such acts from prosecution. As per current law, a wife is presumed to deliver perpetual consent to have sex with her husband after entering into marital relations, which is the absolute crush of the problem concerning marital rape in India. In India, the concept of marital rape is the epitome of “implied consent.” Marriage between a man and a woman implies that both have consented to sexual intercourse, and it cannot be otherwise.

Marital Rape: Against Legal & Constitutional Rights

The doctrine of Coverture: The non-Criminalised nature of Marital rape emanates from the British era. Marital rape is primarily influenced by and derived from this doctrine of merging the woman’s identity with her husband’s. When the IPC was drafted in the 1860s, a married woman was not considered an independent legal entity. The marital Exception to the IPC’s definition of rape was drafted based on Victorian patriarchal norms that did not recognize men and women as equals, did not allow married women to own property, and merged the identities of husband and wife under the “Doctrine of Coverture.”

Violative of Article 14: Marital rape violates the right to equality enshrined in Article 14 of the Indian constitution. The Exception creates two classes of women based on their marital status and immunizes actions perpetrated by men against their wives. Exception 2 violates the right to equality enshrined in Article 14 insofar as it discriminates against married women by denying them equal protection from rape and sexual harassment. Exception 2’s distinction between married and unmarried women also violates Article 14 insofar as the classification created has no rational relation to the statute’s underlying purpose. In Budhan Choudhary v. State of Bihar^² and State of West Bengal v. Anwar Ali Sarkar^³, the Supreme Court held that any classification under Article 14 of the Indian Constitution is subject to a reasonableness test that can be passed only if the classification has some rational nexus to the objective that the Act seeks to achieve. However, Exception 2 frustrates the purpose of Section 375: to protect women and punish those who engage in the inhumane activity of rape. Exempting husbands from punishment is entirely contradictory to that objective. The consequences of rape are the same whether a woman is married or unmarried.

Moreover, married women may find it more challenging to escape abusive conditions at home because they are legally and financially tied to their husbands. In reality, Exception 2 encourages husbands to forcefully enter sexual intercourse with their wives, as they know their acts are not discouraged or penalized by law. Because no rational nexus can be deciphered between the classification created by the Exception and the underlying objective of the Act, it does not satisfy the test of reasonableness and thus violates Article 14 of the Indian Constitution.

Violative of Article 21: According to creative interpretation by the Supreme Court, rights enshrined in Article 21 include the rights to health, privacy, dignity, safe living conditions, and safe environment, among others In the State of Karnataka v. Krishnappa,^⁴ the Supreme Court held that sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female. The same judgment held that non-consensual sexual intercourse amounts to physical and sexual violence. In the Suchita Srivastava v. Chandigarh Administration^⁵, the Supreme Court equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.

In Justice K.S. Puttuswamy (Retd.) v. Union of India, the Supreme Court^⁶ recognized the right to privacy as a fundamental right of all citizens. The right to privacy includes “decisional privacy reflected by an ability to make personal decisions primarily consisting of one’s sexual or procreative nature and decisions regarding intimate relations. In all these judgments, the Supreme Court has recognized the right to abstain from sexual activity for all women, irrespective of their marital status, as a fundamental right conferred by Article 21 of the Constitution.

Therefore, forced sexual cohabitation violates the fundamental right under article 21. The above conclusions reflect that Exception 2 to Section 375 of the IPC infringes Articles 14 and 21 of the Constitution. It is time that Indian jurisprudence understands the brutal nature of this provision of law and strikes it down.

Marital Rape: Against Indian Penal Code (IPC)

Marital Rape defect the Spirit of Section 375 of IPC, the purpose of Section 375 of IPC is to protect women and punish those who engage in the inhumane activity of rape. However, exempting husbands from punishment is entirely contradictory to that objective, as the consequences of rape are the same whether a woman is married or unmarried.

Moreover, married women may find it more challenging to escape abusive conditions at home because they are legally and financially tied to their husbands.

Recommendation by the organization and committee

The United Nations Declaration on the Elimination of Violence against Women defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual, or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.” In 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) recommended that the Indian government should criminalize marital rape.

The JS Verma committee was set up in the aftermath of nationwide protests over December 16, 2012. A gang rape case had also recommended the same. By removing this law, women will be safer from abusive spouses, can receive the help needed to recover from marital rape, and can save themselves from domestic violence and sexual abuse.

Recent Karnataka Judgement

The Karnataka High Court, in significant Judgement, did not accept the husband’s argument that the charge cannot be framed against him due to the Exception to marital rape from the offense of rape as per Exception 2 to Section 375 of the Indian Penal Code. The Court observed that the “exception” can not be “absolute.”

From this Judgement, it is essential to look at the power of the world “ABSOLUTE” holds as per Exception 2 of section 375 of the Indian Penal Code.

Marital Rape Illegal in other countries:

Over 104 countries across the world have criminalized marital rape. In the United Kingdom, which the present Code primarily draws from, has also removed the Exception pursuant to a judgment rendered by the House of Lords in R v. R in 1991. India is one of the only 36 countries where marital rape is still not criminalized. Therefore, the Code made by the rulers then has itself abolished the Exception given to husbands.

More than two-thirds of married women in India, aged 15 to 49, have been beaten or forced to provide sex, regardless of their social-economic positions (UN Population Fund).

1 in 5 men has forced his wife or partner to have sex (As per the International Men and Gender Equality Survey 2011).

Conclusion

Indian law now affords husbands and wives separate and independent legal identities, and much jurisprudence in the modern era is explicitly concerned with the protection of women. Therefore, it is high time that the legislature should take cognizance of this legal infirmity and bring marital rape within the purview of rape laws by eliminating Section 375 (Exception 2) of IPC.

1 Marital Rape in India: 36 countries where marital rape is not a crime, India Today, March 12, 2016.

2 Budhan v. the State of Bihar, AIR (1955) SC 191 (India)

3 State of West Bengal v. Anwar Ali Sarkar, AIR (1952) SC 75 (India).

4 The State of Karnataka v. Krishnappa, (2000) 4 SCC 75 (India).

5 Suchita Srivastava v. Chandigarh Administration, (2008) 14 SCR 989 (India)

6 Justice K.S. Puttuswamy (Retd.) v. Union of India, (2017) AIR 2017 SC 4161 (India)

08/12/2024 0 comments 32 views

Marital Rape – Let’s Talk of it

by Guest Author 08/12/2024

written by Guest Author

By Radhika Barman

Let’s talk of ‘rape’,
Let’s talk of rape,
but without ceasing its ‘marital’ prefix
When you talk of rape,
you often tend to think of an unfortunate, non-consensual, abuse between two individuals, who may even,
and, may not even be adults in some cases,
but what happens,
what happens, to those dreaded stories that lapse off post-midnight behind the chambers?
what happens to those hearts that tremble in fear, everytime, the door knocks,
what happens to that Indian wife of drought struck Rajasthan, who happens to be exhausted,
but can’t say no, for no stands for ‘patidev’s insult,
what happens to that body,
where wounded scars, are the only form of love bites available, as the owner has not much stock,
has not much stock of understanding,
has not much stock of gender sensitivity,
if not love.
what happens to that wretched heart that was still in its naive process of restitching its shreds,
only to be mistaken for an object of rightful gratification,
Behind the hearts of a billion women every night,
the graveyard stands,
sadly aloof & desolated, via the tremors of toxic masculinity,
That masculinity,
that hides away the ideas of gentleness, compassion, and humility.
Lest we choose to forget and often oversee,
that rape is a consequence of masculine power.
The power to overpeer,
the power to finish off, anything the beast chooses to perceive,
as something inferior,
which is not necessarily an object of lust but has been reduced down to.

And in case you are still wondering what’s the name of that graveyard, it’s marriage.
Marriage- an eight-lettered word,
that often stands as a synonym of success,
but ends up substituting for the five-lettered ‘death’.
‘Death’- not necessarily of the flesh,
blood & of course genital collarbones, but most of the soul.
That soul which happens to have sheltered itself within the toxic walls of what we call “love”,
That soul that comforts itself, not by the lovable arousals of her beloved,
but of patriarchy.
That patriarchy that every time,
comes between love & lust,
consent & consent giver,
for we recognize not,
what’s love,
for we recognize not,
what’s not love,
only to be mistaken, the night after, that it was only power- the power of a man,
that love which chose to willfully justify itself,
under the carpet of what we have named – “sexual gratification”.
Yeah, all good and fine,
but what about the soul, does it not have a voice or should it not have one?
Let’s talk of rape,
but without ceasing its ‘marital’ prefix.

08/12/2024 0 comments 29 views

Marital Rape in India: An Outdated Legislation

by Guest Author 08/12/2024

written by Guest Author

By Prakhar Tripathi

The doors of Delhi High Court have been fluttering since last one month with voices being raised to criminalize exception 2 Section 375 of the Indian Penal Code (IPC). All India Democratic Women Association, RIT Foundation and two other organizations are behind putting forth this initiative. The Court has been going through the legality of the exception and whether it serves any purpose in modern-day India or is it just a colonial provision still draping in the books of the criminal manual.

Exception 2 to section 375 of the Indian Penal Code reads as follows: –

Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

A majority of the common law countries have already done away with the draconian provision of marital rape wherein the husband considers the wife as his chattel and performs sexual acts with her even if it is against her will. In fact, India remains one of the only 32 countries in the world where this exception remains to prevail.

England and Wales outdid this provision in the case of R v R in the year 1991 by the Appellate committee of the House of Lords. In Germany, marital rape was outlawed in the year 1997 after female rights activists for 25 years protested against it. Australia criminalized this provision in the year 1991 in the case of R v L by stating that such law was not part of the Australian Law.

Henceforth, the originators of the common law have outdone with this provision, but it still remains an evil continuing to haunt Indian society.

Let us analyse how faintly this provision stands on the footholds of the legal bedrock.

Prima facie, there are three ingredients of rape :- ‘Sexual Intercourse’, ‘Against her will’ and ‘Without her consent’ . Any act satisfying these three criteria falls into the category of Rape. But then, a stalemate has been created in the same section by giving protection to a person who is legally wedded to the victim and whose act satisfies all of these criteria. The exception gives her husband the right to have sexual intercourse with her whether she is willing or not eventually becoming a subject to his whims and fancies thus, violating every right which the women as an individual possess.

Over the years, lots of women in India have been subjected to this social evil. The National Family health survey (NFHS) 2015- 2016 states that 99.1 percent of the sexual violence cases go unreported and an average Indian woman is 17 times more likely to encounter sexual violence from her husband than from others.

The legislators of the country put forth the argument that it might be detrimental for the Indian family structure if this change in the statute is allowed almost overlooking the fact that this exception is violative of the pristine fundamental rights that our constitution provides.

Violative of Article 14 and 21

Article 14 of the Indian constitution states that there shall be equality before the law but the State has to follow an intelligible differentia wherein like should be treated alike and different treatment of people who are in different circumstances. The test of intelligible differentia has been laid down in the case of State of West Bengal vs Anwar Ali Sarkar wherein it has been held that that the differentiation or classification needs to have cogent nexus with the purpose sought to be realized by the statute in question. The exception acts as a sledgehammer in the statute wherein it creates a stark difference between women who are married and those who are unmarried. By the creation of this exception, the section fails to deny the very protection to married women for which it has been devised. The distinction so created neither has a rational nexus with the statute so created nor does it serve the purpose sought by the section.

Similar has been the view of the J.S Verma committee report constituted to recommend changes in the criminal law system which emphasised highly that the exception related to the marital rape should be done away with and that marriage is never an irrevocable consent to sexual acts and that wife is never a subservient chattel of husband.

The exception also violates Article 21 of the constitution which provides for Right to life and personal liberty. The Apex Indian court has in various cases expanded the meaning of ‘life’ in Article 21 by quoting the observation of Field J in the American case of Munn v Illinois wherein it has been stated that the term ‘life’ means much more than an animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. In the case of ‘State of Karnataka vs. Krishnappa it has been held that sexual violence is an intrusion of the right to privacy and sanctity of the female’. In the case of Suchitra Srivastav vs Chandigarh administration it has been held that Article 21 includes the right of a woman to make reproductive choices. None of these judgements differentiate between a woman who is married and the one unmarried. Also, none of the other offences mentioned in the IPC propagate such an arbitrary and repulsive differentiation between a married and unmarried woman. Section 375 is the only anomaly that remains. Henceforth, the contrast created by the section is violative of Article 14 and 21 of the Constitution.

Progressive Judicial Pronouncements

Time and again has the Indian Judiciary held that the exception is a dying provision and needs to be done away with. In the case of Sakshi vs Union of India reference was made to the case of R v R [1991] 4 All ER 481 in which it has ‘been held that a husband and wife are equal partners in a marriage, therefore a husband not being criminally liable for raping his wife if he has sexual intercourse with her no longer forms part of the law of England’

In the case of Satyawati Sharma vs Union of India it has been held that legislation that might have been reasonable and practical at the time of their enactment may become redundant, arbitrary and unreasonable with the lapse of time. Similarly, exception 2 of IPC over the years has become redundant and serves no purpose in modern day India. In the case of Nimeshbhai Bharatbhai Desai vs State of Gujrat it has been held that wilful perverted sexual acts with wife would amount to cruelty under 498A of the IPC because then the normal sexual relations which form the basis of a happy married life would come to a standstill and a husband having sexual intercourse with his wife is not using her just as her property but filling the marital consortium.

What we can discern from all these judgments is that sexual intimacy between the husband and wife is one of the major building blocks of their relationship. The kind of intimacy husband and wife want to have in their relationship needs to be thoroughly discussed and should be done with mutual consent of both of them. If the female is not willing to have any kind of perversion in their intimate life, then it is clearly her choice and she has all the rights to do so. Forcing her against her will, would amount to cruelty and eventually be violative of all the rights our virtuous constitution gives her.

The Way Forward

Therefore, it is high time that the polarity created between married and unmarried women by the statute needs to be done away with. The married daughters of our country need to have a life filled with dignity and respect; that the laws made to inoculate them do not act against them. Although, an act of caution has to be seen while enacting this provision. That is, men should not be at the receiving end of this new change in law. There has been an alarming rate of rise of false rape cases in India, because the only pre-requisite required to file a rape case is the statement of a women. Therefore, various innocent men in India suffer unknowingly that they might at the receiving end of section 375. What is to be seen is that after removal of exception 2, the section is handled with utmost care and precision which allows both men and women to be equally treated by the statute and that only genuine cases of marital rape come to the court retrenching its time and the value of the justice delivery system.

08/12/2024 0 comments 22 views

Indian Judiciary on Rape Cases

by Guest Author 08/12/2024

written by Guest Author

By Pooja Bhattacharjee

Rape has been defined under Section 375 of the IPC (Indian Penal Code, 1860), which states that rape is said to have been committed when a man has sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation, or fraud or at a time when she has been intoxicated or duped or is of unsound mental health and in any case if she is under 18 years of age. Rape is a form of gender-motivated violence in India. In the case of Sakshi v. UOI, the Supreme Court shed light on the definition of rape and held that only penial and vaginal penetration will be considered as rape within the purview of Section 375 of the IPC, thus narrowing down the scope of sexual intercourse as defined in the IPC. However, in 2012, a bench of justices Swatanter Kumar and Gyan Sudha Misra held that even if there is no penetration, it does not necessarily mean that there is no rape, while upholding the conviction of a man for raping a 11-year-old girl, despite there being no evidence of penetration. (The Hindu)

The Verma Committee had recommended that non penetrative acts against women, like stalking and groping, which are also a violation of woman’s bodily integrity and sexual autonomy, should be termed as sexual assault and be punished as rape. The legislature, however, did not accept the recommendation and retained the offence of ‘outraging the modesty of a woman,’ which is the provision under which all non-penetrative sexual acts continue to be prosecuted under Section 354 of the IPC. (THE WIRE)

To prove that consent was absent, the law’s aim should be to reduce ambiguity and alter definitions to mitigate the historic imbalance of credibility afforded to males but not to females. The most important factor to be determined in a rape is whether the woman consented to the sexual act. The law presumes that the accused is innocent. The burden is on the prosecution- victim to prove beyond reasonable doubt that consent was absent. Under Section 375, ‘willingness to participate in the specific sexual act’ can be conveyed ‘through words, gestures or any form of verbal or non-verbal communication.’ The focus is more often on if these ‘gestures’ occurred and not on what they meant.

Two recent cases shows that the Indian judiciary needs to be more sensitive in dealing with rape cases and not fall back on erstwhile sexist and misogynistic views that have emerged in numerous judgments.

In the Guahati Rape Case, the Gauhati High Court granted bail to Utsav Kadam, a 21-year-old accused of rape on the ground that the he is a talented student and is the state’s ‘future asset.’ The police had arrested the accused, a student of IIT Guwahati on April 3, for allegedly sexually assaulting a female student of the institute on March 28. The bench of Justice Ajit Borthakur in an order passed on 13 August granting bail to Utsav Kadam, observed, “as the investigation in the case is completed and both the victim and the accused are the state’s future assets being talented students pursuing technical courses at the I.I.T., Guwahati, who are young in the age group of 19 to 21 years only and further, they are being hailed from two different states, a continuation of detention of the accused in the interest of trial of the case, if charges are framed, may not be necessary”. The order was passed despite the fact that the court noted that there is a clear prima facie case against Kadam.

Last year, it was reported that a Civil Court in the Araria district of Bihar had sent a gang rape survivor to jail on grounds of disrupting court proceedings. Her only crime was having an emotional outburst and a nervous breakdown that emanated from the Court’s request to repeat her trauma over and over again. What seems to be a natural reaction for any rape survivor was misconstrued as ‘contempt of court’. The judiciary’s response to rape cases, specifically, rape survivors seem to fluctuate between insensitive and thoughtless to sexist and misogynistic. (ThePrint 2020)

In India, the class, and caste of the victim are used as means to discredit the victim. The colonizers used caste or class to gauge the reliability of the version of events stated by survivors and this is being continued to date. The rape adjudication cases in India involving a breach of promise to marry are also revealing. In Kunal Mandaliya v. State of Maharashtra.

Justice Mridula Bhatkar observed that an educated woman could not have been deceived, and thus was not raped on the pretext of marriage. The judgement read:

The prosecutrix at the time of filing the complaint was 30 years old and was nearly 25 to 26 years old when the first incident of sexual intercourse took place. Thus, she was aware of the consequences of keeping sexual relations with a man and she was also aware that there may be differences between two persons and they may find each other compatible. The girl was highly educated and also 25 years old. Therefore, the consent cannot be said to have been obtained by fraud.

The court’s comment on consent shows how in the absence of an affirmative standard, a negative standard invalidates the experience of the woman and improperly shifts the responsibility of the assault away from the perpetrator and onto the victim.

Marital rape refers to sexual intercourse with one’s spouse without their consent. Recently, the Chhattisgarh High Court held that sexual intercourse by husband does not amount to rape, even if it’s by force. (Today 2021)

The law, as inhumane as it is, however, is being defended by some eminent jurists who are in favour of leaving the provision untouched in order to protect the ‘Indian family values.’ It is important to acknowledge, however, that those assigned the female sex at birth are not the only survivors of rape in India, often, nonconformity with gender boundaries not only functions as a basis for sex crimes, including rape but also makes it harder for survivors to seek help. Section 375 of the IPC only conceptualizes the perpetrator as male and the victim as female. Its exclusivity in nature leaves out a large section of society who are being violated and are left with no discourse of getting justice.

The status quo burdens victims and exonerates perpetrators of responsibility in sexual interactions. Indian statutes, legal decisions, and commentaries condemning rape primarily focus on it as a crime that lowers a woman’s dignity and scars her reputation, rather than a crime violative of a woman’s selfhood, individuality, or autonomy.

The accounting of traditional notions of what an ‘Indian woman’ is and their defined ‘behaviors’ are, should be discarded. Even though change is visible, an overturning of the current structures will be brought about through a normative reconstruction of our laws and our social rationality only when people realize why the current laws are problematic and ancient and understand why new amendments to these laws are necessary.

It is necessary to take legal recourse if you’ve been abused of sexual harassment or have witnessed someone getting abused. Consecutively, you can register your complaint at the National Commission for Women as investigations by the police will be expedited and monitored.

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

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