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Sex with Wife Below 18 Is Rape, says Supreme Court

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Supreme court on child marriage case.
The Supreme Court of India says sex with wife below 18 is Rape. Wikimedia

New Delhi, October 11: The Supreme Court on Wednesday struck down the provision of criminal law that permitted sex by a husband with his minor wife between the age of 15 to 18 years in a child marriage case.

Section 375 of the Indian Panel Code made an exception on the question of sex with minor wife by the husband in child marriage case.

A bench of Justice Madan B. Lokur and Justice Deepak Gupta — in separate but concurring judgements — said the exception was “arbitrary, discriminatory and capricious”.

Justice Lokur said the exception has no rational nexus with the objective sought to be achieved by the different statutes. (IANS)

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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
  • 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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Reasons Why Marital Rape Should Be Recognised as a Criminal Offence

Debate on marital rape continues as it fails to get regarded as a punishable offense

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Marital Rape
Recognition of marital rape as a crime. Pixabay
  • The grievous danger caused by marital rape is unable to gain recognition
  • Women should be granted rights to handle situations of marital rape
  • Illiteracy, poverty and religious beliefs are not an excuse for committing marital rape

July 25, 2017: Most of the countries have regarded marital rape as a criminal offense but India has still not taken this action and due to this, the debate about marital rape continues.

The future for women and their rights in India seems bleak as the grievous danger caused by marital rape is unable to gain recognition.

But what exactly is marital rape? It occurs when a man imposes sexual right on his wife by use of force, without taking her consent, or threat of force. In a country where domestic violence is a punishable offense, why isn’t domestic sexual abuse a crime? Just as domestic violence destroys and hurts the body, marital rape destroys and harms the soul. Rape is rape no matter who commits it. It could be your boyfriend, your uncle, your husband or a stranger. Any force experienced to indulge in sexual activity should be made a punishable act regardless of the relationship with the rapist.

Also Read: Women should not Silently Face Atrocities and must Speak up about Issues like Marital Rape, says Actress Katrina Kaif

Maneka Gandhi, The Union Minister for Women and Child Development, says that “marital rape”  is inapplicable in a country like India since illiteracy, social customs, religious beliefs, poverty is widespread here.
This implies that it is acceptable for a man to force his wife into sexual activity because he is poor or illiterate.

Many of us often see our domestic help with a black eye, and when asked, she would say, husbands, are allowed to hit their wives as it’s the norm. The same norm permits husbands to rape their wives, without protection, whenever they come home drunk.

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An Indian Marriage is more like a sexual contract as it provides the husband a right over his wife’s body and gives him ownership rights over the wife. This implies that a married woman has no right over her own body. Refusing to recognize marital rape as a criminal offense is equivalent to spreading the belief that it is acceptable for women to be raped as long as the rapist is her husband. If we want to develop our country and spread literacy, we need to grant women the control of their lives where it is her right to say no to her husband for sexual intercourse or pregnancy without being penalized or punished for it and commence help for abused women. It is necessary for the myth of “wifely duty” to end because sexual activity must take place with mutual consent and pleasure.

Marital Rape
Marriage is no excuse for rape. Wikimedia

A few years back, newspapers carried a tale of a woman aged 26 who came back with severe injuries from her Bangkok honeymoon as her husband had violent sex with her. In order to achieve equality between men and women, it is essential to grant rights to women over their bodies, recognition of forced sexual activity in her marriage, and raising their voices against it. The government must provide help for abused women.

A Statistical report of the study conducted by The International Centre for Women (ICRW) in eight States: Uttar Pradesh, Punjab, Rajasthan, Haryana, Maharashtra, Gujarat, Odisha and Madhya Pradesh covered 3,158 number of women and 9,205 number of men aged between 18-49. The sample represented various castes, income groups and religions. The NFHS report revealed that the majority of rape that women reported was within the marriage and only 2.3 per cent of rape reported by women to the interviewers of NFHS was by other men.

Not criminalizing marital rape is either to degrade the real bonds and affections that keep marriages held together in spite of differences and disagreements or to believe that marital rape and sexual abuse in marriages is a common affair. A positive step in this direction will give women a sense of security and a redressal mechanism in situations of marital rape.

-prepared by Harsimran Kaur of NewsGram. Twitter @Hkaur1025

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Criminalisation of marital rape: A mango man’s take on it

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Picture credit: newsx.com

By Sreyashi Mazumdar

While bidding adieu to her daughter, tears streaming down her eyes, she said, “Dear, do not go against your in-laws despite unsound circumstances, bear with whatever they say and ask you to do. Look after your husband’s needs, do not refute his commands, his well-being should be your penultimate goal,” and her newly -wed daughter baulking to leave her bonds, gradually trails down a road, heading to a strange alley, tangling with a completely different lifestyle.

Hesitant she was, but as his better half held her hands, unraveling an implicit intent of never forsaking her, they set off on a newfangled journey and lived happily ever after.

Picture credit: hunffingtonpost.com
Picture credit: hunffingtonpost.com

But, what if this wouldn’t have been the case? What if he would have turned out to be a demon? What if his carnality would have bereaved her of her sanity? What if the tears trailing down her eyes while leaving her parents would have embarked on a never-ending journey? What if she would have been raped within the four walls of her so-called ‘heavenly abode’…by her better half…her husband?

Considered as one of the sanctimonious institutions, Marriage has always been a hot potato amongst Indians, they say- Shaadi ka laddu khao toh pachtao aur na khao toh bhi pachtao (You will repent if you get married, and you will repent even if you don’t get married).

Holier-than-thou, this institution celebrates the union of two individuals; individuals who might have never known each other as in the case of arrange marriages and when individuals might have known each other for a considerable stint as in the case of love marriages.

However, the entire gamut of marriage is not just constricted to the big fat Indian weddings and the subsequent brouhaha it involves, but it also brings forth a string of issues, ranging from dowry to marital rapes.

Picture credit: thepalladium.ph

“It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors e.g. level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc,” Haribhai Parathibhai Chaudhary, minister of state for home affairs, said in a written statement.

Now, Haribhai’s statement might have bamboozled millions but there are people who still think that marriage being a consecrated institution, shouldn’t be rebutted, one shouldn’t challenge its sanctity despite issues like domestic violence, marital rapes creeping into the matrimony.

Trailing on a myriad of opinions flocking in, especially with the kind of deliberations on the issue of marital rape being put up on news channels, NewsGram conducted a vox populi and tried to collate public opinion on the same.

“Personally I believe marital rape should be made illegal. If marriage is a legally binding contract, then all acts within marriage should also come under the scrutiny of the law,” says Devjani Bodepudi, a writer.

Tuning in to a similar line of thought, 55-year-old Atashi Chatterjee fleshed out her views, “A wife confides in her husband; she looks up to her husband and relies on him completely. If the husband forces himself on her despite her unwillingness, then that’s nothing less than rape; the wife inevitably gets subjected to a psychological trauma, a mental block. I think it’s high time that a person committing such a hideous crime should be penalized.”

Taking a slightly different note, a lawyer at a OICL Devpurna Talapatra brought forth the probability of the law being misused if marital rape gets a legal recognition, “It’s easy and righteous to say that yes, of course, marital rape should be criminalized right away, but the probability of it not being accessible to its target group and rather being misused makes one wonder. Mooting on the same, she added, “It is yet another one of the necessary risks we have to accommodate for the greater good, much like the often debated Section 498A.”

Picture credit: adaring.com
Picture credit: adaring.com

Vexed by the usual male bashing, 40-year-old Anwar Hussain talks of the probability of a husband being raped by his wife, “It’s not always the husband who forces himself on his wife, there are incidents where the wife forces herself on her husband or rapes him – if that’s how we choose to define it. Therefore, it shouldn’t be all male bashing.”

“Marital rape should be penalized but do you really think that would solve the problem?” asks newly-wed Bramhomoy Bose, an employee at an IT firm. “How will a woman prove her stand under circumstances wherein her husband passes of forceful sex as a conjugal sex?” he wonders.

Scrolling through these opinions one might ponder upon the brutality and a sense of helplessness attached to the issue of marital rape, but the entire ambit of the issue doesn’t boil down to a mere black and white inference.

Lampooning the perpetrators isn’t the only solution; one requires digging into the deeply entrenched retrograde mindset borne by the people. It seems that our hidden carnal instincts are traversing the unconscious and subconscious layers of our minds and gradually creeping into the conscious, thereby spilling out snippets of barbarism.

One has to pull the plug on the parochial ideologies, generally, borne by individuals and strive to refurbish the same. Cracking down upon the root cause propelling inhumanity might bring forth a relevant change, thus putting an end to any form of violence.

Some tweets on marital rape, people mooting their point on social media