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What Gives Husbands The Licence to Rape? Decoding Marital Rape in the Indian Legal Scenario

Can there be two different definitions of rape? Can there be a differentiation between the rape of a married woman and the rape of an unmarried woman?

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Marital rape
While most of the developed world has penalized marital rape, surprisingly it is yet to be categorized as an offence in India. Pixabay
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  • Cases of sexual violence, including rape, fall within the larger realm of domestic violence
  • Marital rape is yet to be categorized as a criminal offence in India
  • According to the central government, criminalizing marital rape “may destabilize the institution of marriage”

New Delhi, September 2, 2017 : Baby works as a domestic help; she says she cannot recall her age when her parents married her off to a man who was much older to her; a man she barely knew. She didn’t anticipate her husband would demand to have intercourse on their wedding night. She was still young and not ready, but that didn’t stop him. Baby was raped by her husband on her wedding night. But marital rape means nothing to her.

Sunita irons clothes for a living. She says has been married for more years than she can remember. The duo has four kids together, but that doesn’t stop her husband from raising a hand or two on her, every once in a while. Every night, her husband would get drunk, hit her and forcefully demand to have sex, paying no heed to her resistance. Sunita has three daughters, and a son, and the husband still wants to have progenies. “I told my mother that this man has raped me multiple times. She protested, arguing that he is ‘your husband’ after all,” she said.

But did she never decide to approach the authorities?

To this, Sunita promptly replied, “I once had a sore eye after he (the husband) hit me with his shoe when I refused to have sex. I went to the local hospital and then the police. I narrated the entire scene; they were very considerate, offered me water and then asked me to go home and ‘adjust’.”

Sunita is unaware of a term called ‘marital rape’.

This is the reality of a huge part of the society in real India.

Like Baby and Sunita, women who suffer such indignities are often asked to “adjust” with perpetrators of violence because of a deep –embedded fear of what the society would say. This notion of an ‘ideal woman’ impedes women to object to illicit treatment meted out by their ‘better halves’.

The debate around the issue has become ripe once again with the Central Government stating that what “may appear to be marital rape” to a wife “may not appear so to others”. In an affidavit to the Delhi High Court, the central government took a stand against criminalizing marital rape saying that it “may destabilize the institution of marriage” and also become easy tool for harass the husbands and the in-laws.

Rape v/s Marital Rape

Rape is defined in Section 375 of the Indian Penal Code, but with an irregularity: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

While rape is addressed as perforation without a woman’s accord in its main clause, the only remedy to forced intercourse provided to ‘married’ woman is specified under Section 498-A of the IPC and the civil provisions of the Protection of Women from Domestiic Violence Act.

Following the horrific 2012 Nirbhaya rape case that brought the entire world to a standstill, the Indian media has given paramount coverage to instances of rape across the country. But even after 5 years of the gut-wrenching incident, there seems no end to this crime.

ALSO READ The Hardships of Sexuality: Marital rape, violence and humiliation

Cases of sexual violence, including rape, fall within the larger realm of domestic violence. However, rape by husbands within holy matrimony continues to remain an obscure subject in India and the exact number of cases is hard to gauge.

According to a 2015 report by National Crime Record Bureau (NCRB) tracing the proximity of offenders to the victims of sexual violence, it was revealed that in 95 per cent of all rapes, the offenders were familiar to the survivors. These, presumably include acquaintances, friends, relatives and colleagues.

And what about rape committed by husbands?

These cases continue to be an under-reported crime in India. This can be attributed to two major reasons,

  • Because of the stigma associated with it
  • Because of the presence of a defunct justice system

Furthermore, more often than not, these cases go missing because of several additional (and unnecessary) barriers stemming from a combination of familial and/or social power structures, shame and dependency.

Marital Rape In India

While most of the developed world has penalized marital rape, surprisingly it is yet to be categorized as an offence in India.

A United Nations’ report titled ‘Why do some men use violence against women and how can we prevent it?’ published in 2013 disclosed that nearly a quarter of 10,000 men  in Asia-Pacific region, including India, admitted to have indulged in the rape of a female partner. The report traced their rationale to a deep-embedded belief that they are entitled to sex despite the consent of their partners.

The study also revealed that the majority of these instances were not reported and the perpetrators faced no legal consequences.

In 2014, United Nations Population Fund (UNFPA), in association with International Centre for Research on Women (ICRW) brought out a report titled ‘Masculinity, Intimate Partner Violence and Son Preference in India’. Among other things, the report analyzed the average Indian male’s understanding and interpretation of the idea of ‘masculinity’ and how that molds their interactions with women.

Not surprisingly, the study revealed that a typical man in the Indian society associated the attributes ‘tough’, and ‘controlling’ with masculinity.

Segments of the present day Indian society continue to look at men as tough forces, who can (must) freely exercise their privilege to establish rule in personal relationships and above all, continue to control women.

Additionally, the study also revealed that 60 per cent of the Indian men disclosed the use of physical violence to establish authority.

In India, stiff patriarchal norms continue to tilt the gender balance firmly in the favor of men, as a result of which, women are forced to internalize male dominance in their lives.

Marital Rape in India : A Legal Perspective

Section 375 essentially distinguishes between two categories of women

  • Married women
  • Unmarried women

Much to the Indian society’s disappointment, the Indian legal system denies protection from rape to the married woman. This creates discrimination as the women belonging to one section are denied justice merely by virtue of being married.

But can there be two different definitions of rape? Can there be a differentiation between the rape of a married woman and the rape of an unmarried woman? Is it justified to discriminate a woman just because she is married to the man who has raped her?

The Debate Around Marital Rape In India

Despite the piquant situation, the issue raised furor when Minister of State for Home, Haribhai Parathibhai Chaudhary told the Parliament that the question of criminalizing marital rape in India has no relevance “as marriage is treated as sacred here.”

Does marriage being a sacrament provide one with the legal right to rape a woman?

South Asia director at Human Rights Watch Meenakshi Ganguly had retaliated saying that it is particularly concerning when a government that claims to secure the safety of women inside and outside national territory shamelessly turn to justify a crime in the name of culture and tradition.

Group director of social and economic development at the International Centre for Research on Women (ICRW) Priya Nanda asserted in an interview with a leading portal that “the reason men don’t want to criminalize marital rape is because they don’t want to give a woman the power to say no.”

In 2013, a three-member commission headed by Justice J.S. Verma suggested remedial measures to combat sexual violence in India, following the 2012 Nirbhaya rape case. One of its recommendations was the criminalization of marital rape.

ALSO READ Reasons Why Marital Rape Should Be Recognised as a Criminal Offence

The recommendation was ignored by the government as a large amount of people questioned its efficiency saying if made a crime,

  • It might be misused by people
  • It will be difficult to prove
  • It might break up marriages

But, how fair is it to not have a law against marital rape, only because of the reason that it is ‘difficult to prove’?

In a broader understanding, it needs to be understood that the criminalization of marital rape must not be viewed as a step against men or the institution of matrimony, but as an attempt to demolish the patriarchal system that continues to clutch the Indian society.


 

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India Can Really Take An Ostrich Approach To The Condition Of Women?

A total of 548 global experts on women’s issues , 43 of them from India

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BJP Leader Asks Parents Of A Rape Victim To Express Gratitude To Them
Can India Really Take An Ostrich Approach To The Condition Of Women?. Flickr

-By Deepa Gahlot

You read with a mixture of alarm and scepticism, the poll report by the London-based Thomson Reuters Foundation that India is the most dangerous country in the world for women, beating Afghanistan, Syria, Somalia, Saudi Arabia and Pakistan.

According to reports, a total of 548 global experts on women’s issues — 43 of them from India — were asked about risks faced by women in six areas: healthcare, access to economic resources and discrimination, customary practices, sexual violence, nonsexual violence, and human trafficking. And shockingly, India comes out as the worst!

We see women progressing in every field in India, but, there is also the increasing violence against women and young girls reported every day; not long ago, female tourists felt safe in India; but now, women travelling solo are constantly targeted. Everyday there are reports of the rapes and murders of minor girls, often accompanied by unimaginable torture and mutilation.

There has been outrage in India, and also holes punctured in the survey that has such a small number of respondents, but can we really take an ostrich approach to the condition of women? Even as education and healthcare improve for women — at least in metro cities — the contempt for women is socially and culturally ingrained in the Indian psyche. In a city like Mumbai considered progressive and relatively safe for women, the girl child is unwanted even by many educated and wealthy families. In spite of laws being in place, female foeticide and infanticide is rampant, to the extent that there are large territories where there are no girl children and brides for the men have to be ‘imported’ from other states.  As dowry murders and rapes rise, the more unwanted the girl child becomes.  The fact is that India’s gender ratio is deplorable.

And if the male child is valued over the girl child, he grows up believing that he is special and if he is thwarted in any way, he can resort to violence. In spite of education and exposure to progressive ideas, in the case of rape or sexual violence, the tendency to blame and shame the victim persists.

To give just one small example, in the West, accusations of sexual harassment resulted in united shunning of a man as powerful as Harvey Weinstein and many others in the wake of the #MeToo movement, that helped many women speak out about their experiences.

In India, Malayalam actor Dileep, who has been accused in the abduction and rape of an actress, and was boycotted by the Association of Malayalam Movie Artistes (AMMA), was recently reinstated. This caused shock and dismay among women in the film industry.

A statement by a group of over 150 women film practitioners says it like it is, “A body that is meant to represent artistes of the Malayalam movie industry showed complete disregard for its own member who is the victim of this gross crime. Even before the case has reached its conclusion, AMMA has chosen to validate a person accused of a very serious crime against a colleague. We condemn this cavalier attitude by artistes against women artistes who are working alongside them. There is misogyny and gender discrimination embedded in this action.

“We admired and supported the Women in Cinema Collective that was formed by women film artistes in Kerala in the aftermath of the abduction and molestation of a colleague, a top star in the industry. We applaud the WCC members who have walked out of AMMA to protest the chairman’s invitation to reinstate the accused. We pledge our continued support to the Women in Cinema Collective who are blazing a trail to battle sexism in the film industry.

“Cinema is an art form that can challenge deeply entrenched violence and discrimination in society. It is distressing to see an industry that stands amongst the best in the country and has even made a mark in world cinema choose to shy away from using their position and their medium responsibly at this important moment. Today, women form a significant part of the film and media industries, we reject any attempt at silencing us and making us invisible.”

The Gujarat elections have brought the BJP and the Congress in close contest with each other.
Indian women. VOA

The preference for male children has had some unexpected ramifications. In a working paper published by the American non-profit, National Bureau of Economic Research, by Northwestern University’s Seema Jayachandran and Harvard University’s Rohini Pande (quoted in Quartz Media), finds that stunting in Indian children could also be blamed on the cultural preference for sons.

“In India, on average, the first child — if he is a son — doesn’t suffer from stunting. But, if the first — and so the eldest — child of the family is a girl, she suffers from a height deficit. And, then, if the second child is a boy, and hence the eldest son of the family, he will not be stunted. This happens because of an unequal allocation of resources to the first child”.

According to the report, “When Jayachandran and Pande compared India and Africa results through this lens, they found that the Indian first and eldest son tends to be taller than an African firstborn. If the eldest child of the family is a girl, and a son is born next, the son will still be taller in India than Africa. For girls, however, the India-Africa height deficit is large. It is the largest for daughters with no older brothers, probably because repeated attempts to have a son takes a beating on the growth of the girls.”

Also read: Has Legal Framework Turned a Blind Eye towards Under-representation of Women in Indian Politics?

In spite of all the Beti Padhao, Beti Bachao rhetoric, the required shift in the male-centric attitude towards a more egalitarian one is simply not happening; or, it is a case of one step forward, two steps backward. The Thomson Reuters Foundation report may be unfair and skewed, but being known as the rape capital of the world does nothing to improve the image of India in the world or even in its own eyes. (IANS)