Part 4: Who is Aiding the Injustice?

Nileena Atholi

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“Marriage is a licensed prostitution” – George Bernard Shaw once said. If women say ‘NO’ to sex, their basic needs of food, clothes and shelter will become uncertain for them. Women need to be self-sufficient, educated and hold a job if they have the courage to say that they are not mentally ready for sex, or they are having menstruation or sickness. But in Kerala, where marital rape victims include even IAS officers, just an awareness won’t suffice. There comes the necessity of criminalizing marital rape.

According to IPC 375 section, rape is an unlawful sexual intercourse between a man and a woman, either through force, intimidation, or against her or without her consent. Even consensual sex with a woman when she is mentally ill or under the influence of alcohol can be covered by rape. The definition of rape, however, states that a man’s sexual intercourse with his wife (unless she is under the age of 16) cannot be considered as rape. That means the sexual exploitation of children under the age of 18 is a criminal offense under the Pocso Act while husband raping his wife who is aged between 15 and 18, cannot be covered under rape. According to the Pocso Act, having sex with a girl under the age of 18 is a criminal offense punishable with sentence up to life imprisonment.

Part 1: Marriage is not a cover for abuse

In the 1860s in which IPC was written, women were not considered as legal entities. Instead she was counted as the property (immovable property) of her husband. Victorian patriarchal laws did not treat men and women as equal. Many of the Indian laws are derived from British colonial laws. Advocate and activist Asha Unnithan says that it is the reason for marital rape was removed from the definition of rape from the IPC which followed the colonial laws.

The Constitutional Bench of the Supreme Court has recently overturned the 158-year-old section 497 which treats a woman as the sexual property of her husband. In spite of this order, the cruelty goes unpunished as still women are forced by their husbands for sex and sexual harassment.

What the Lawmakers Said and Did?

The former Union Minister for Women and Child Development, Maneka Gandhi, said that rape is not always a legitimate requirement of male sex but rather a desire to conquer it. Asked about the stand of government on the issue, the same Maneka Gandhi said, "Due to factors such as education level, illiteracy, poverty, religious beliefs, customs and social attitudes that sanctify marriage, rape cannot be viewed in the Indian context as it is internationally understood."

Part 2: The Consequences of the Patriarchy

In April 2015, the then Union Minister of State for Home Affairs, Haribhai Parthibhai Chaudhary also responded in similar fashion to the question by Kanimozhi who cited the statistics that 75 percent of women are victims of marital rape. The government even indirectly affirmed in its affidavit that if illiterate and poor, a man can rape his wife and marital rape cannot be condemned to maintain that marriage is a sacred thing.

The Government, too Abandons the victims

The Central Government's view is that cruelty committed to a married woman by her husband or relatives is punishable by up to three years in prison and hence there is no need of special criminalization of rape. But Adv. Asha says that the punishment of three-year jail term is under section 498A which prohibit dowry. It is compulsory to ask for dowry under this section. They point out that if a husband commits sexual assault without asking for a dowry, he cannot be punished.

In August 2017, the Supreme Court sought comment from the Central Government on various petitions seeking to treat marital rape as a criminal offense. The government said that they stand with the provision of excluding husbands from the definition of rape. “Criminal law is on the concurrent list. It falls under the jurisdiction of the states. Each state has its own cultural diversity and the states should be consulted on the issue,” the government added.

Part 3: Drugs and pornography in bedroom

The government's affidavit to the Delhi High Court said that the wife may feel that it is rape but others may not. The government's affidavit states that if marital rape is criminalized, the structure of marriage will be destabilized and the law will be used as a powerful weapon against husbands. The Kerala High Court also earlier dismissed a Public Interest Litigation against the removal of marital rape from the definition of rape.

Nirbhaya and the Criminal Law Amendment

The amendment to the definition of rape in criminal law was made as per the recommendations by J.S Verma Committee. The Verma Committee had also proposed the criminalization of marital rape. But the Parliamentary Committee avoided it. The parliamentary committee argued that criminalizing marital rape would undermine traditional family values. At the same time, UN Development Program Chief Helen Clark once observed that if this law is not amended, all sustainable development achieved by India will be in vain.

The Domestic Abuse Act alone is enough?

The Domestic Violence Prevention Act is the law that prohibits acts of violence by husband and his household. But the society and police often reduce domestic violence to a mere family problem.

“If a woman is sexually abused in a domestic setting, it can be prevented under the Domestic Violence Prevention Act. You can approach magistrates, organizations, police, lawyers and aid organizations for justice. In the event of such a case, the court will give priority to mediation. Primarily, the courts will issue a stop-violence order. If this order is violated, the court will take punitive action against it. To put it in perspective, the Domestic Violence Act in fact addresses the atrocities including rape. But the punishment is only against violating the court order to prevent violence,” says Adv. Asha Unnithan.

Deterrent effect

One of the greatest benefits of criminalizing marital rape is its deterrent effect. That is to convey that such act is a crime and it will invite punishment. The law has to firstly state it is a crime so that people will understand that marital rape is a crime.

Why to criminalize?

“Since the involved parties are husband and wife, it cannot be taken as rape even though the intercourse is against her will or consent” This is a verdict made Justice Virender Bhatt, a Delhi High Court judge in 2014. Moreover, the court observed that refusing to have sex with a husband is a violation of human rights and that once a man gets married, he is legally allowed to have sexual relations with a woman with or without her consent.

But there are certain constitutional violations in not criminalizing marital rape. They are the following.

-Article 14 of the Constitution guarantees citizens equal justice. Different justice for a married woman and an unmarried woman with regards to rape is in contrary to the notion of equality. The Supreme Court once said in its verdict on a petition against non-criminalization of marital rape, it is inappropriate to bring Article 14 which provides constitutional equality, to the family. The Supreme Court also held that the cold-blooded constitutional laws have no place in the warm relationships of the domestic environment.

-According to Article 21, marital rape is a violation of the constitutional rights, privacy and dignity of a person and the right to health and privacy.

-According to IPC 497, women have the right to self-determination. Then the women have the right to decide when to have sex.

-In August 2017, the court ruled that privacy is a fundamental right. Hence marital rape is a violation of one’s fundamental rights.

Tomorrow: Part 5: Health Problems Faced By Married Women

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