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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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Clerics help Pakistan pedophiles target minor Hindu, Christian girls

In a span of three years, Mian Mithoo reportedly has converted 150 girls to Islam but he insists that all the conversions are voluntary, never forced.

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Mumbai’s  Islamic televangelist Zakir Naik, president of the Islamic Research Foundation in India has defended the practice of sexual slavery. Wikimedia Commons
Mumbai’s  Islamic televangelist Zakir Naik, president of the Islamic Research Foundation in India has defended the practice of sexual slavery. Wikimedia Commons

By Ahmar Mustikhan

Pakistan pedophiles, who believe having sex with minors enhances their sexual prowess and stamina, routinely abduct minor Hindu and Christian girls, have sex and convert the girls to Islam and marry them, all within 24 hours.

Muslim clerics in the length and breadth of Pakistan aid the culprits while the parents of the victim girls have no avenue to seek justice. The rapidity with which the entire process happens shows the conversions are well orchestrated and enjoy state blessings as the culprits go scot-free.

“Is there any single day empty, when Hindu girl would not be abducted and converted? A 13-year-old girl kidnapped from Shahpur Chaker and got married to 52 year-old-man at Bharchundi Dargha,” said Hindu agriculture engineer Raj Kumar Tuesday in a Facebook post. “Descendants of Mohammed bin Qasim are to this day treating Hindu girls as if they were a war booty,” he quipped on Facebook. Qasim was a young Saudi general from Taif who attacked and defeated ruler of Sindh, Raja Dahir, in the Eighth Century.

Parents of a 13-year-old Hindu who was abducted from Shahpur Chakar and married to a 52-year-old man who already has five kids. Pir Faqeer Andul Khaliq aka Mian Mithoo of Bharchundi Sharif aided the forced conversion
Parents of a 13-year-old Hindu who was abducted from Shahpur Chakar and married to a 52-year-old man who already has five kids. Pir Faqeer Andul Khaliq aka Mian Mithoo of Bharchundi Sharif aided the forced conversion

“Where is Sindh Government and child marriage law?,” asks Dr. Jaipal Chabbria, who hails from Kandhkot town in Sindh and is the leader of the Pakistan Tehrik-i-Insaf of former cricketer Imran Khan. “How surprising that a 13 year-old-girl is kidnapped and forcefully married to 52 year-old-person who has already five children. Who will give protection to none Muslims?”

The cleric responsible for the conversion is a former member of the National Assembly and belonged to Pakistan People’s Party when Asif Ali Zardari was president. His name is Pir Faqeer Abdul Khaliq aka Mian Mithoo from Daharki town of district Ghotki, neighboring India’s Rajasthan state.

In a span of three years, Mian Mithoo reportedly has converted 150 girls to Islam but he insists that all the conversions are voluntary, never forced.

Even as Hindus were lamenting the abduction of the 13-year-old girl from Shapur Chaker, another Hindu girl was abducted. “No single day passes without abduction of Hindu girls. One more Sorath, daughter of Heero Meghwar from District Tharparkar has been abducted,” said Hindu rights defender Shankar Meghwar

Asad Chandio, a veteran journalist who has been a leading voice against forced conversions of Hindu girls in Sindh, says Mian Mithoo’s conversion works pale in comparison to an even more dangerous cleric named Pir Ayub Jan Farooqi aka Pir Ayub Jan Sirhandi, who is from Samaro town in Umerkot district.

Also see: Ahmar Mustikhan views on Kulbhushan Yadav’s meeting with his mother and wife

“Farooqi targets Umarkot and Tharparkar, two Sindh districts where even today Hindus form 65 percent of the population. The Hindus there are the poorest among the poor like Bheel, Kohli, and Meghwar,” Chandio, who fled Pakistan after receiving death threats from both religious outfits and Pakistan secret services, said Tuesday from Houston, Texas. “Pir Farooqui has vowed that he will not rest at ease until each and every Hindu in Umarkot and Tharparkar convert to Islam,” he said.

Pir Faqeer Mian Mithoo, aka Abdul Khaliq, a former member of the National Assembly, who once belonged to the Pakistan People’s Party.
Pir Faqeer Mian Mithoo, aka Abdul Khaliq, a former member of the National Assembly, who once belonged to the Pakistan People’s Party.

Pir Farooqui heads the religious seminary called Gulzar-i-Khalil in Samara town where he religiously issues a report card each year on the number of Hindu girls and boys he has converted to Islam.

A report in the New York Times early this year said, 1,000 Christian and Hindu girls, mostly underage, are taken from their families each year, converted to Islam, and married.

The Times report cited Dr. Ramesh Kumar Vankwani of the Pakistan Hindu Council as saying, “So many immature girls, below the age of 18 mostly, have been kidnapped. After 15 days a (certificate of marriage) will be presented in court that the girl has of free will be converted and accepted Islam, and she has now been married.”

In some cases, the matter reaches the court system but the victims are often threatened that if they don’t say they had eloped and converted on their free volition, their entire families will be gunned down. So they tell the judge they converted on their free will. Only in rare cases, does a victim tell the court the truth about their rape.

Sindh journalist Asad Chandio, a leading voice against forced conversions of Hindus, who had to flee Pakistan after receiving death threats from the clerics and Pakistan intelligence services.
Sindh journalist Asad Chandio, a leading voice against forced conversions of Hindus, who had to flee Pakistan after receiving death threats from the clerics and Pakistan intelligence services.

When Pakistan was created by the British Raj, by dividing India, in August 1947, thirteen out of the 53 members of parliament were non-Muslims. Farahnaz Ispahani, a Pakistani scholar and aide to former president Asif Ali Zardari, in a paper titled “Cleansing Pakistan of Minorities”, writes, “At the time of partition in 1947, almost 23 per cent of Pakistan’s population was comprised of non-Muslim citizens.” That population has now gone down to three percent because of the forced conversions and intimidation to non-Muslims.

Hindus have nowhere to go
The Human Rights Commission of Pakistan in a report said around 25 Hindu girls are converted to Islam each month—many cases never get reported. In most cases, Hindus have no door to knock for justice as Pakistani judges side with the rapist kidnappers. According to Hindu rights activist Shanker Meghwar, under the Child Marriage Restraint Act, the age for the marriage of a girl is fixed at 18 years and any person contracting  a marriage with a girl under the age of 18 commits an offence, but in the case of Hindu girls the law is silent and so are all human rights activists. “Where should the Hindus go?” Meghwar asks in a Facebook posting. “We don’t know which door to knock; we don’t know before who to cry.”

In seldom cases, a court may pass a verdict in favour of the parents, but those orders go unimplemented, Hindu rights in Pakistan say. “Our community can bear looting and the kidnapping of our men, but the abduction of our daughters and wives is too painful,” Bhagwan Das, who holds a National Assembly seat reserved for minorities, told Al Jazeera news. “Unfortunately, the frequency of these crimes is increasing due to religious extremism.”

Christians in Punjab

If minor Hindu girls are targets in Sindh, minor Christian girls are sitting ducks for the Muslim men of Punjab province. “Raping and killing the kafirs is justified in their basic Islamic ideology,” said Pakistan Christian Congress (PCC) chief Bhatti, who lives in Philadelphia. He said Punjab, the stronghold of the army, is one of the most dangerous places in the world for Christians, including their females. He adds more than 99 per cent of rape and forced marriage cases, involving Christian females, go unreported in Pakistan.

In one case of rape and abduction of a 12 year old Christian girl in Lahore, the militant organisation Lashkar-i-Taiba or “Army of the Pure,” whose main target is India, produced a nikahnama or marriage certificate, claiming that the minor girl was married to one of their members, according to the Christian Freedom International. The non-profit Movement for Solidarity and Peace, MSP, says every year between 100 to 700 Christian women, “usually between the ages of 12 and 25 are abducted, converted to Islam, and married to the abductor or third party.”

Dr Nazir Bhatti, president of the Pakistan Christian Congress, says Pakistan is one of the most dangerous countries for Christians where forced conversion and rape of Christian girls is taking place with impunity.
Dr Nazir Bhatti, president of the Pakistan Christian Congress, says Pakistan is one of the most dangerous countries for Christians where forced conversion and rape of Christian girls is taking place with impunity.

In its investigative report “Forced Marriages & Forced Conversions in the Christian Community of Pakistan” the MSP notes that after abduction, these Christian women are subjected to “sexual violence, rape, forced prostitution, human trafficking and sale, or other domestic abuse” but in court, when asked to testify before the judge, these victims give a statement in favour of their captors out of fear.

PCC’s Bhatti said these hapless girls are threatened that since they have recited the kalima, Muslim declaration of belief in Allah and Muhammad, and embraced Islam now if they dare say they are Christians they will be killed for blasphemy and apostasy.

Islam and sex with minors, sex slaves

Apparently, Pakistan pedophiles have Islamic history on their side. After ISIS fighters overran Yazidi villages in Iraq’s Sinjar region, the USA Today quoted the ISIS as saying, “It is permissible to have intercourse with the female slave who hasn’t reached puberty if she is fit for intercourse; however if she is not fit for intercourse, then it is enough to enjoy her without intercourse.”

Mumbai’s  Islamic televangelist Zakir Naik, president of the Islamic Research Foundation in India, defends the practice of sexual slavery. Zakir Naik, who got 135,000-pound sterling reward from Saudi King Salman, explains at the time of the Prophet Muhammad Muslims were allowed to have sex with captured slave girls and women – the spoils of war – without marriage. “There are many verses in the Quran which say that you can have sex with those who are your wives and what your right-hand possesses,” Naik