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ABHISHEK KUMAR VATSA (Freelancer)     30 December 2012

Marital rape and indian legal scenario

 


Marital Raperefers to unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent. Marital rape could be by the use of force only, a battering rape or a sadistic/obsessive rape. It is a non-consensual act of violent perversion by a husband against the wife where she is physically and s*xually abused.

Approximations have quoted that every 6 hours; a young married woman is burnt or beaten to death, or driven to suicide from emotional abuse by her husband. The UN Population Fund states that more than 2/3rds of married women in India, aged between 15 to 49 have been beaten, raped or forced to provide s*x. In 2005, 6787 cases were recorded of women murdered by their husbands or their husbands’ families. 56% of Indian women believed occasional wife-beating to be justified.

Historically, “Raptus”, the generic term of rape was to imply violent theft, applied to both property and person. It was synonymous with abduction and a woman’s abduction or s*xual molestation, was merely the theft of a woman against the consent of her guardian or those with legal power over her. The harm, ironically, was treated as a wrong against her father or husband, women being wholly owned subsidiaries.

The marital rape exemption can be traced to statements by Sir Mathew Hale, Chief Justice in England, during the 1600s. He wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.”

Not surprisingly, thus, married women were never the subject of rape laws. Laws bestowed an absolute immunity on the husband in respect of his wife, solely on the basis of the marital relation. The revolution started with women activists in America raising their voices in the 1970s for elimination of marital rape exemption clause and extension of guarantee of equal protection to women.

In the present day, studies indicate that between 10 and 14% of married women are raped by their husbands: the incidents of marital rape soars to 1/3rd to ½ among clinical samples of battered women. Sexual assault by one’s spouse accounts for approximately 25% of rapes committed. Women who became prime targets for marital rape are those who attempt to flee. Criminal charges of s*xual assault may be triggered by other acts, which may include genital contact with the mouth or anus or the insertion of objects into the v**gina or the anus, all without the consent of the victim. It is a conscious process of intimidation and assertion of the superiority of men over women.

Advancing well into the timeline, marital rape is not an offence in India. Despite amendments, law commissions and new legislations, one of the most humiliating and debilitating acts is not an offence in India. A look at the options a woman has to protect herself in a marriage, tells us that the legislations have been either non-existent or obscure and everything has just depended on the interpretation by Courts.

Section 375, the provision of rape in the Indian Penal Code (IPC), has echoing very archaic sentiments, mentioned as its exception clause- “Sexual intercourse by  man with his own wife, the wife not being under 15 years of age, is not rape.” Section 376 of IPC provides punishment for rape. According to the section, the rapist should be punished with imprisonment of either descripttion 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 unless the woman raped is his own wife, and is not under 12 years of age, in which case, he shall be punished with imprisonment of either descripttion for a term which may extend to 2 years with fine or with both.

This section in dealing with s*xual assault, in a very narrow purview lays down that, an offence of rape within marital bonds stands only if the wife be less than 12 years of age, if she be between 12 to 16 years, an offence is committed, however, less serious, attracting milder punishment. Once, the age crosses 16, there is no legal protection accorded to the wife, in direct contravention of human rights regulations.

How can the same law provide for the legal age of consent for marriage to be 18 while protecting form s*xual abuse, only those up to the age of 16? Beyond the age of 16, there is no remedy the woman has.

The wife’s role has traditionally been understood as submissive, docile and that of a homemaker. Sex has been treated as obligatory in a marriage and also taboo. Atleast the discussion openly of it, hence, the awareness remains dismal. Economic independence, a dream for many Indian women still is an undeniably important factor for being heard and respected. With the women being fed the bitter medicine of being “good wives”, to quietly serve and not wash dirty linen in public, even counseling remains inaccessible.

Legislators use results of research studies as an excuse against making marital rape an offence, which indicates that many survivors of marital rape, report flassh back, s*xual dysfunction, emotional pain, even years out of the violence and worse, they sometimes continue living with the abuser. For these reasons, even the latest report of the Law Commission has preferred to adhere to its earlier opinion of non-recognition of “rape within the bonds of marriage” as such a provision may amount top excessive interference wit the marital relationship.

A marriage is a bond of trust and that of affection. A husband exercising s*xual superiority, by getting it on demand and through any means possible, is not part of the institution. Surprisingly, this is not, as yet, in any law book in India.

The very definition of rape (section 375 of IPC) demands change. The narrow definition has been criticized by Indian and international women’s and children organizations, who insist that including oral s*x, sodomy and penetration by foreign objects within the meaning of rape would not have been inconsistent with nay constitutional provisions, natural justice  or equity. Even international law now says that rape may be accepted a s the “s*xual penetration, not just penal penetration, but also threatening, forceful, coercive use of force against the victim, or the penetration by any object, however slight.” Article 2 of the Declaration of the Elimination of Violence against Women includes marital rape explicitly in the definition of violence against women. Emphasis on these provisions is not meant to tantalize, but to give the victim and not the criminal, the benefit of doubt.

Marital rape is illegal in 18 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia. Rape in any form is an act of utter humiliation, degradation and violation rather than an outdated concept of penile/v**ginal penetration. Restricting an understanding of rape reaffirms the view that rapists treat rape as s*x and not violence and hence, condone such behaviour.
            
The importance of consent for every individual decision cannot be over emphasized. A woman can protect her right to life and liberty, but not her body, within her marriage, which is just ironical. Women so far have had recourse only to section 498-A of the IPC, dealing with cruelty, to protect themselves against “perverse s*xual conduct by the husband”. But, where is the standard of measure or interpretation for the courts, of ‘perversion’ or ‘unnatural’, the definitions within intimate spousal relations? Is excessive demand for s*x perverse? Isn’t consent a sine qua non? Is marriage a license to rape? There is no answer, because the judiciary and the legislature have been silent.

The 172nd Law Commission report had made the following recommendations for substantial change in the law with regard to rape.

  1. ‘Rape’ should be replaced by the term ‘s*xual assault’.
     
  2. ‘Sexual intercourse as contained in section 375 of IPC should include all forms of penetration such as penile/v**ginal, penile/oral, finger/v**ginal, finger/anal and object/v**ginal.
     
  3. In the light of Sakshi v. Union of India and Others [2004 (5) SCC 518], ‘s*xual assault on any part of the body should be construed as rape.
     
  4. Rape laws should be made gender neutral as custodial rape of young boys has been neglected by law.
     
  5. A new offence, namely section 376E with the title ‘unlawful s*xual conduct’ should be created.
     
  6. Section 509 of the IPC was also sought to be amended, providing higher punishment where the offence set out in the said section is committed with s*xual intent.
     
  7. Marital rape: explanation (2) of section 375 of IPC should be deleted. Forced s*xual intercourse by a husband with his wife should be treated equally as an offence just as any physical violence by a husband against the wife is treated as an offence. On the same reasoning, section 376 A was to be deleted.
     
  8. Under the Indian Evidence Act (IEA), when alleged that a victim consented to the s*xual act and it is denied, the court shall presume it to be so.

The much awaited Domestic Violence Act, 2005 (DVA) has also been a disappointment. It has provided civil remedies to what the provision of cruelty already gave criminal remedies, while keeping the status of the matter of marital rape in continuing disregard. Section 3 of the Domestic Violence Act, amongst other things in the definition of domestic violence, has included any act causing harm, injury, anything endangering health, life, etc., … mental, physical, or s*xual.

It condones s*xual abuse in a domestic relationship of marriage or a live-in, only if it is life threatening or grievously hurtful. It is not about the freedom of decision of a woman’s wants. It is about the fundamental design of the marital institution that despite being married, she retains and individual status, where she doesn’t need to concede to every physical overture even though it is only be her husband. Honour and dignity remains with an individual, irrespective of marital status.

Section 122 of the Indian Evidence Act prevents communication during marriage from being disclosed in court except when one married partner is being persecuted for n offence against the other. Since, marital rape is not an offence, the evidence is inadmissible, although relevant, unless it is a prosecution for battery, or some related physical or mental abuse under the provision of cruelty. Setting out to prove the offence of marital rape in court, combining the provisions of the DVA and IPC will be a nearly impossible task.

The trouble is, it has been accepted that a marital relationship is practically sacrosanct. Rather than, making the wife worship the husband’s every whim, especially s*xual, it is supposed to thrive n mutual respect and trust. It is much more traumatic being a victim of rape by someone known, a family member, and worse to have to cohabit with him. How can the law ignore such a huge violation of a fundamental right of freedom of any married woman, the right to her body, to protect her from any abuse?

As a final piece of argument to show the pressing need for protection of woman, here are some effects a rape victim may have to live with,-

  • Physical injuries to v**ginal and anal areas, lacerations, bruising.
     
  • Anxiety, shock, depression and suicidal thoughts.
     
  • Gynecological effects including miscarriage, stillbirths, bladder infections, STDs and infertility.
     
  • Long drawn symptoms like insomnia, eating disorders, s*xual dysfunction, and negative self image.

Marriage does not thrive on s*x and the fear of frivolous litigation should not stop protection from being offered to those caught in abusive traps, where they are denigrated to the status of chattel. Apart form judicial awakening; we primarily require generation of awareness. Men are the perpetrators of this crime. ‘Educating boys and men to view women as valuable partners in life, in the development of society and the attainment of peace are just as important as taking legal steps protect women’s human rights’, says the UN. Men have the social, economic, moral, political, religious and social responsibility to combat all forms of gender discrimination.

In a country rife with misconceptions of rape, deeply ingrained cultural and religious stereotypes, and changing social values, globalization has to fast alter the letter of law.
 


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 5 Replies

arun kumar (accountant)     31 December 2012

Dear Mr. Abhishek,

 

You have effectively represent the wife side at some points I agree with you for physical voilence.

but how will you differ when in the night wife's consent was with the husband but in the morning Just because of litle dispute she just file a case of rape or s*xual assault?

if wife want to have s*x she can give consent but what about husband when he want?

women have right to decide when to produce babies but what about feeling of husband's families?

If you are talking about mental voilence than is it not possible that it will be a tailor made story?

already there are so many laws which women are openly misusing like dowry, maintenance, streedhan, claim of husbands property(even if the marriage is for one night only), so what your law say husband is just like an atm machine?

divorce possible depends on wifes wishes.

people like you daily suggesting new rules and regulations. do you ever have met husband families what their problems are. come in the real world where 90% women misusing and play with laws and no provision of punishment for them. you are giving example of european countries, there is no comparison with them because of difference in culture. I agreed that crime is available in the society but that is only against the women that is wrong.

just because of people like you many married men living single because they scared if they file any case their wives will file 10 times fake cases on them and they will be financially destroy.

first decide wife's duties before giving him rights.

stanley (Freedom)     31 December 2012

I agree to Arun Kumars view . Mr Abhishek should go through this portal itself and see the no of husbands fighting false domestic violence cases and well as false 498 A cases .  

1. The constitution of india promotes Equality before law: Article 14 of the constitution guarantees that all citizens ... any of the Indian citizens on the basis of their caste, creed, colour, s*x, gender.

2. The DVA Violates even  article 14  of the consitutation of India which talks about equality if s*x , Gender . 

3. The DVA talks about coustody of the  child only to a Women  dont you feel that it should be Gender Neutral else children would remain fatherless . 

4. A Metro women even though working files for maintanence ?? And than starts abstracting money like ATM Machines from the husband .

5. Section 497 of IPC has a law to perscute the Man for Adultery and why not for the women .Does it mean she can sleep at will with an tom d**k and harry ?? 

6. The Author of this post would next come out saying " It is difficult to prove domestic violence inside for walls of the bedroom " for the N no of false cases filed .

7. The author of this post has conveyed that 14 % of the husband's  rape their wife's what about the conviction rate in 498 A cases ( 2 % ) from ths we can assume the no of false cases filed .

I dont know when laws would be made gender neutral whihc is the need of the hour ..

JASWANT VIJAY AGNIHOTRI (AIR ARMY)     31 December 2012

why marriage is happening, it should be like live-in, sweat wish to walk away.....?

Msk-need -nuetral- laws (self)     31 December 2012

yes live-in seems to best option, oh no, ncw ( national crier for women) running with body wet in tears tocover live-in lady.. 

rajiv_lodha (zz)     01 January 2013

India is heading towards chaos no doubt. They are playing with gender related laws just in the heat oof moment A KNEE JERK REACTION. Soon a day wil come when boys wil SAY A BIG NO TO HINDU MARRIAGE.


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