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Marital rape scenario in India

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India is one of the fastest developing nations of the world.The pace at which our country is developing is commendable and a lot of factors are responsible for it.But as India is progressing towards development its still lagging behind in a number of social evils. Its has been 70 years since independence but the women of our society still feel unsafe to step out of their homes. Our moral policing done by some of the sections of society feel that going out of home is an invitation by women to the perpetrators but what about the cases where women are unsafe even in their own homes.

The rape cases have increased manifold in the country including marital rapes. The rape victims feel ashamed to talk about their suffering and the scenario of marital rapes is much worse. According to NCRB, only 5%-6% rape cases are reported in India and only 0.6% of rapes by the husband were reported in 2015. Crimes against women have increased manifold the worst being rape where the victim has to compromise with their dignity as well. Delhi is considered the Rape Capital of India due to the number of crimes against women increasing haphazardly. The victims of rape have a far difficult life as compared to the perpetrators as they lose out not just their dignity but family, friends as well. The issue of rapes is not just regarding safety but much more than that and the ever increasing incidents of rape is an issue of concern. The common notion of our society that marriage is a sacred knot and whatever the husband does the women has to bear with it is deeply saddening.

Equality & empowerment has always been a talking point in our country but the society can never become egalitarian or empowered until and unless the individuals feel strongly about it from within. The societal pressure on women is far greater than men. The women are supposed to keep the family intact so, when the same women reach out to the police to report the crimes against them are not accepted by the family, friends or society. Marital rapes are committed in a lot of parts of our country but the women are not ready to report them due to the taboo attached to it. They are not even allowed to talk ill about their husband then how would anyone accept them going against their husband and fighting for their own rights.

There is always a fear of retaliation attached to marital rapes where the victim feel that if we go against our husband then he will retaliate in a much more brutal manner so, they accept it as their fate. Even when a victim tries to take a stand then there is no family support. Their own parents refuse to support them or ask them to return to their husband as they feel breaking off marriage will ruin their lives. But what they fail to understand is living with the perpetrator everyday is already ruining their lives. The women live in constant fear of being rejected by the society or being left alone. When the question arises to choose between dignity and survival they often end up choosing survival over their own dignity and self-respect. The stigma attached to being a rape victim creates a sense of terror in the minds of the victim due to which they never try to fight for what is right.Lack of education and moral education in particular leads to objectification of women. When the husband will think of his wife just as a source to fulfill his physical needs then he won’t ever realise that she is equal to him in terms of being an individual and deserves respect.

We need to teach our children to respect everyone and that will culminate in respecting women and being sensitive towards them. In marriage both husband and wife are considered to be equal but when the male counterpart starts thinking that he needs to control his wife and her actions or that he is far better than her then instead of being caring and supportive of her he starts being cruel or rude to her. Marriage is a sacred bond but it should never transform into a scared bond where the wife always feel unsafe because of her husband.

Marital rape is not a criminal offence in Indian legal framework, except during the period of judicial separation of the partners. In 1980s, women’s rights group campaigned for marital rape to be declared unlawful. Initially it was presumed that the marriage gives authority to husband and consent to sex and that criminalising marital rape in turn would weaken family values in India. The Section 375 of the Indian Penal Code considers forced sex in marriages as a crime only when the wife is below 15 years of age.Thus, marital rape is nit a criminal offence under IPC.The marital rape victims have the option of seeking help through the Protection of Women from Domestic Violence Act, 2005 (PWDVA) which came into force in 2006, outlaws marital rape as well as other form of domestic violence. However, it offers only a civil remedy for the offence.

 

Due to a case which occurred in May, 2014 where the culprit allegedly got a girl intoxicated, raped her and fled. The Indian court ruled that marital rape was illegal in India which led to a number of protests and the citizens argued that the ruling “highlighted the failure of Indian law to protect the majority in the country”. The culprit hid behind the outdated legislation to get away with a crime.
Before 3rd February 2013, Section 375 of IPC defined rape as:

A man is said to commit “rape” who, except case hereinafter excepted, has sexual intercourse with a woman in circumstances falling under any of the six following descriptions:-

Firstly- Against her will
Secondly- Without her consent
Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly- With her consent, when the man knows that he his not her husband, and that her consent us given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly- With her consent, when at the time of giving such consent, by reason of unsoundness of mind or intoxication administered by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly- With or without her consent, when she is under 16years of age.

 

Exception- Sexual intercourse by a man with his own wife not being under fifteen years of age, is NOT rape.

The above definition excluded marital rape. [Due to Delhi Rape Case] After 2nd April 2013, the definition was revised through the Criminal Law (Amendment) Act 2013, which also raised the legal age of minor to 18.

Section 375. A man is said to commit “rape” if he:
a) Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person;
b) Inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person;
c) Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person
d) Applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:

Firstly- Against her will
Secondly- Without her consent
Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly- With her consent, when the man knows that he his not her husband, and that her consent us given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly- With her consent, when at the time of giving such consent, by reason of unsoundness of mind or intoxication administered by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly- With or without her consent, when she is under 18years of age.
Seventhly- When she is unable to communicate consent.

Exception- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is NOT rape.

Even after the 2013, reform marital rape when the husband and wife live together continued not to be a crime in India. Article 376B of the 2013 law made forced sexual intercourse by a man with his wife- if she is living separately- a crime, whether under a decree of separation or otherwise, punishable at least a 2year prison term. Forces sex by a man on his wife may also be considered a prosecutable domestic violence under other sections of IPC such as Section 498(A) as well as the Protection of Women from Domestic Violence Act, 2005. Progress in legislative terms has been made but still a lot needs to be done.

The grounds for “marital immunity” for rape prosecution were laid by Chief Justice Sir Matthew Hale in the History of the Pleas of the crown, published in 1736. 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 up herself in this kind unto her husband, which she cannot retract.” This “Implied Consent Theory” of Sir Hale found its way into the legal system of all former British colonies that adopted common law system and that’s why we are still following an outdated law in India.

In marital rape the victim being the wife suffers all kinds of hardships and husband being the perpetrator doesn’t feel he his doing anything wrong as he believes its his right to have sexual relations with his wife whether she gives consent or not. Women due to pressure of society and relatives feel that they have to tolerate all this as marriage is a sacred knot which binds them to their husband even though the husband is violent or commits crime against her. So, perpetrators have no fear. The keep on committing the same crime again and again and still go unnoticed because the victim is ready to bear all the wrongdoings.

Lack of awareness among women regarding their rights is a big contributing factor in the ever increasing crimes against them. The society is divided on the basis of class and it is found that the people who belong to higher status are much more against the reporting of crimes as they feel that their respect in society will be at stake. Thus, these societal norms leads to unreported crimes and women living in constant fear of rejection by their families due to which they never think of taking a stand for their own. Even when crimes are reported victims complain of being harassed by the police or public servants.

In most cases, reported from emergency wards the police delayed collecting medical evidences from these hospitals and also did not wish to record an FIR.This creates mistrust or lack of trust in the justice system in the eyes of victim.

The immediate family members or friends to whom the women turn for support are actually the ones who instead of supporting them pressurise them to return to their husband. They make the victim feel that its ideally wrong to go against their husband which might wreck their household. The victims go through not just physical but emotional, mental, social stress as well. This mindset proves that reporting of marital rape is still considered a taboo in our society. The victims need to survive on their own after the reporting of crime or divorce however, the case may be which is really difficult because of women not being self- reliable in most scenarios.

The victims suffer due to social discrimination or being outcast by their community.

Educating individuals from an early age can be helpful in raising the standard of women in society. We should make women realise their individuality rather than preaching them to be an ideal wife who should never speak ill about her husband. There must be focus on rehabilitation programs as well for the victims as they suffer mental, emotional, physical abuse which might lead to breakdown. They must be given opportunity to interact with NGOs and other organisations working for the welfare of women. Instead of creating a controversy on this topic it should be discussed and awareness measures must be taken. Proper efforts should be made in the direction of developing a provision regarding marital rape in IPC. We can even take measures to adopt steps to have proper laws regarding marital rape.

We should learn from other countries of the world which have criminalised marital rape Poland being the first to do so in 1932 and have a law explicitly making it a criminal offence. Australia was the first common law country (which was initially a British colony like India) to pass reforms in 1976 that made rape in marriage a criminal offence. Since the 1980s many common law countries have legislatively abolished the marital rape immunity like South Africa, Ireland, Canada, The United States, New Zealand, Malaysia, Ghana and Israel. The biggest example to learn from can be of Nepal which got rid of the marital rape exception in 2002 after its Supreme Court held that it went against the constitutional right of equal protection and the right to privace. It said, “The classification of the law that an act committed against an unmarried girl to become an offence and the same act committed against a married woman not to become an offence is not a reasonable classification.”

According to UN Women’s 2011 report, out of 179 countries for which data was available, 52 had amended their legislation to explicitly make marital rape a criminal offence. The remaining countries include those that make an exception for marital rape in their rape laws, as well as those were no such exception exists and where, therefore the spouse can be prosecuted under the general rape laws.Our judicial system must be fast, effective and reliable. Firstly, we need to teach women to take a stand for their identity and well being and secondly, to fight for their own rights without any fear any inhibition and thirdly, making them self reliable. This might be a long process but we should never stop fighting for what is right. Instead of being looked down the victims should be respected for their bravery. The public servants dealing with such cases need to be helpful and patient during the whole process.

Victims should not be victimised but helped to get rid of the fear and accept themselves instead of being ridiculed. We as a society should acknowledge the individuality of a woman as a human being instead of discriminating only then some change might occur & for change to occur consistent efforts must be made.

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