#MaritalRape and the Indian legal scenario #mustshare #Vaw


marital-rape-poster
Priyanka Rath seeks to bring out the laws regarding rape in India while concentrating on the position of marital rape and its recognition as an offence by the system and the attitude of the society and the judiciary towards marital rape.

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 sexually 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 sex. 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 sexual 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 sexual assault may be triggered by other acts, which may include genital contact with the mouth or anus or the insertion of objects into the vagina 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 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 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 description for a term which may extend to 2 years with fine or with both.

This section in dealing with sexual 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 sexual 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 flash back, sexual 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 sexual 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 sex, 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 “sexual 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/vaginal penetration. Restricting an understanding of rape reaffirms the view that rapists treat rape as sex 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 sexual 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 sex 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 ‘sexual assault’.
  2. ‘Sexual intercourse as contained in section 375 of IPC should include all forms of penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal.
  3. In the light of Sakshi v. Union of India and Others [2004 (5) SCC 518], ‘sexual 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 sexual 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 sexual intent.
  7. Marital rape: explanation (2) of section 375 of IPC should be deleted. Forced sexual 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 sexual 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 sexual.

It condones sexual 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 sexual, 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 vaginal 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, sexual dysfunction, and negative self image.

Marriage does not thrive on sex 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.

source-http://www.indialawjournal.com/

Taboos Undercut Nepal’s Marital Rape Law


By Tara Bhattarai

Many women in Nepal say they didn’t know that involuntary intercourse within marriage has been outlawed. Women’s advocates say those who are aware would rather call it a form of domestic violence than marital rape.

KATHMANDU, Nepal (WOMENSENEWS) — Devaki Poudel, 39, has kept quiet about the abuse she’s been enduring at the hands of her husband for nearly 25 years. She didn’t want to embarrass her family.

Now, as Poudel talks, her nerves are visible. She has a sweet voice, but it seems suppressed.

“My husband doesn’t like me talking and socializing with others,” says Poudel, who requested her first name be changed for safety reasons. “If he finds out that I’m talking to someone . . . ”

Poudel, her husband and their three kids have been living for 15 years in a rented apartment in the Lalitpur district, across the river from Nepal’s capital. Her husband works as a security guard at a private company.

They were married when she was 15. Her parents prevented her from attending school because they believed she would become a prostitute if she were educated. To avert this fate, they married her to a man from a neighboring village, 25-year-old Ramesh Poudel, whose first name has also been changed to protect his identity.

On the surface, they look like a happy family. But Poudel says otherwise.

“From the second day of marriage, my life has been like hell,” she says.

She says her husband began to fondle her private parts in ways that hurt her. He also forcefully had sexual intercourse with her. Marred by bruises and her husband’s teeth marks, her skin bore testament to the nightly scuffles. The abuse was so severe that it hurt her genitals, but she says she kept quiet about it.

A few days after her wedding, Poudel says she told her mother she didn’t want to return to her husband’s home. But her mother said women had to stay with their husbands, no matter how hard it was.
Never Discussing Sex

Poudel says her neighbors and landlord have heard her crying, but she usually covers it up as a domestic dispute. Even when her sisters or relatives come to visit, they never discuss sex.

“How do I discuss bedroom matters with others?” she asks. “And at the end of the day, it’s me who has to suffer.”

Six years ago, the Nepal government amended its law against rape to include marital rape, yet many women such as Poudel say they haven’t heard of the term or the law against it.

Even when they become aware, uneducated and educated women alike most often decline to report their husbands. They share the deeply ingrained taboo not to talk about sex, complicated by notions of respect for husbands and economic factors.

In contrast, women have increasingly invoked the Domestic Violence Law of 2009. Family violence reports jumped substantially last year in Nepal, according to data from Nepal Police Women and Children’s Cell. There were 968 reports in 2009 and 983 in 2010. By the end of April the following year, there were already 1,355.

Rupa Shrestha, database manager at the Women’s Rehabilitation Center, a nongovernmental organization, says that although women come in with complaints, they are too scared to file a formal report of marital rape against their husbands because of personal and social reasons. She says cases have been scarce nationally.

“There have only been two cases in the court since the law has been established,” Shrestha says.

Character Attack

Women say people would attack their characters if they filed marital rape reports, says Susha Gautam of the Forum for Women, Law and Development. Instead, victims of marital rape are more comfortable filing domestic violence cases.

The Domestic Violence Act covers physical, mental, sexual and financial torture, and punishments include fines ranging from 3,000 to 25,000 rupees ($35 to $300) and possible prison terms of up to six months, Gautam says. Domestic violence reports have been rising, she adds, likely because of an increased awareness among women of their rights rather than an increase in domestic violence.

Since the issue of marital rape is not discussed openly in Nepal, reliable statistics are unavailable. Currently about 110 men are serving time in Bhadra Prison in Kathmandu for rape, including nearly 40 with life sentences, according to data from the Central Prison. But none is there for marital rape.

“In every household, women have been bearing the brutality of marital rape,” says Suchitra Mainali, a sociology professor at Padma Kanya Multiple College, the first women’s college in Nepal. “It seems like women have been used to bearing it with such pain.”

In the Kathmandu Valley, Nepal police have a separate women’s division to handle gender-based violence. When women report domestic violence, it usually has to do with some sort of sexual violence and marital rape, says Lal Kumari Khadka of the women’s prison in Lalitpur.
Loyalty and Stigma

Many don’t report such cases because of a loyalty to their husbands that is deeply ingrained in Nepali culture and the social stigma attached to defying or leaving one’s husband, Mainali says.

Women such as Phoolmaya Limbu, whose first name has been changed to protect her safety, remain loyal, even though says she has also long suffered from marital rape.

Limbu, 49, is from Jhapa, a district in eastern Nepal. Despite suffering a uterine prolapse, when the uterus slips down from its normal position, she says her husband didn’t refrain from forcing her to have intercourse. To deal with the pain, she started to drink alcohol. She says she usually got tipsy and sometimes even drunk to tolerate the forced sex.

“It seems that to be born as a woman is a waste,” she says.

Women from the city with formal education may be even less inclined to speak about marital rape than uneducated women, says a professor at a public college, who declined to be named. Other women cite economic reasons for not reporting their husbands, as they are the sole provider in the household.

Deepa Acharya, a legal adviser from the National Women’s Council, says that the government is working to raise awareness through special ministries and councils created to address women’s issues. She says the media is also helping to make more women aware of marital rape and the laws and resources available to assist them.

“Work is in progress,” Acharya says. “The government is also working toward it. It takes time for people to be aware.”

Despite such efforts, victims such as Poudel and Limbu remain unwilling to report their husbands. Poudel says her life has been a “living hell,” but she still thinks highly of her husband.

“Whatever it is, he is my married husband,” she says. “My identity is associated with him. But in my next life, I don’t want to be born as a daughter. I want to be born as a man.”

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