“Woman is the companion of man, gifted
with equal mental capacities. She has the right to participate in the minutest
details in the activities of man, and she has an equal right of freedom and
liberty with him. She is entitled to a supreme place in her own sphere of
activity as man is in his. This ought to be the natural condition of things and
not as a result only of learning to read and write. By sheer force of a vicious
custom, even the most ignorant and worthless men have been enjoying a
superiority over woman which they do not deserve and ought not to have. Many of
our movements stop half way because of the condition of our women.” - Mahatma
Gandhi.
It is with these hard-hitting words that
the Justice J.S. Verma Committee started its landmark report, which was aimed
at amending sexual assault laws in India. The Committee was set up after the
horrific Nirbhaya rape sent shockwaves across the country. It served as a
beacon of hope to scores of angry Indians who believed that enough is enough
and it is now time for stringent laws to be set to avoid such an incident in
the future. While the Committee largely delivered on its promise, the issue of
marital rape is one that enrages the public even today.
Marital Rape can be defined as unwanted
intercourse by a man with his wife obtained by force, threat of force, or
physical violence, or when she is unable to give consent. Marital rape could be
by the use of force only, or a sadistic/obsessive rape.
Historically, “Raptus”, the generic term
of rape was to imply violent theft, applied to both property and person. It was
synonymous with abduction and a woman’s abduction or sexual molestation, was
merely the theft of a woman against the consent of her guardian or those with
legal power over her. The harm, ironically, was treated as a wrong against her
father or husband, women being wholly owned subsidiaries.
Backing the long-standing demand of the
women’s activists that marital rape be considered as an offence, the Justice
Verma committee stated that marriage or any other intimate relationship between
a man and a woman is “not a valid” defense against sexual crimes like rape.
“The law ought to specify that marital or
other relationship between the perpetrators or victim is not a valid defense
against the crimes of rape or sexual violation,” the committee said in its
report. The committee said the “relationship between the accused and the
complainant is not relevant to the enquiry into whether the complainant
consented to the sexual activity and the fact that the accused and the victim
are married or in another intimate relationship may not be regarded as a
mitigating factor justifying lower sentences for rape.” “Our view is supported
by the judgment of the European Commission of Human Rights in C.R. versus UK,
which endorsed the conclusion that a rapist remains a rapist regardless of his
relationship with the victim,” the 630-page report said.
Despite criminalizing marital rape
being among the suggestions of the Verma Committee, the government rejected
this proposed change, leaving it out of the draft bill it then presented to
Parliament.
Supporters of the government’s decision,
including the police, claim it is hard to prosecute marital rape, because
unlike an unmarried victim, evidence of penetration is not considered
sufficient evidence for rape. The law, they argue, could be misused by couples.
Okay, let’s move away from the purview of
politics and generically analyze why marital rape is being condoned in today’s
day and age.
The generic arguments which support
marital rape are absurd and shocking to say the least. Three major
justifications for the ‘marital rape exemption’ can be sketched out. The
first one is that the woman is the man’s property, and discounts all the
rights of/for the woman.
The second rationale is that marriage is
an institution where two individuals, the man and the woman, unite together as
one. However, they unite together, into a single entity, which is the man. (Oh,
but of course. You saw that coming! Of course, it had to be the man!)
The third rationale assumes that
a woman’s consent – apparent consent- to marriage suffices to be
consent for any manner or degree of sexual relation.
Having understood the reasons why marital
rape is supported, let’s apply some simple rebuttals to each reason.
The first rationale is widely
believed to be invalid or obsolete, but I believe that this is so only in
theory. But I don’t see how it is obsolete, in current scenarios.
There are still societies and families that are so backward, that they believe
in training women right from an early age to suit the needs of the man to
whom she will become the better half. Women are still seen as
inanimate entities in many societies, by many people.
The second rationale is refuted by
claiming that marriage is an institution built on equality.
The third rationale is probably why
marital rape is still understated and downplayed in many parts of the
world.
A small glimpse at the outlook of the
courts in India should provide an idea of how myopic we are in our thinking.
There are a couple of recent developments
to be studied, which will clarify India’s stand on marital rape:
1. The Supreme Court on
February 18, 2015 refused to entertain a woman's plea to declare marital rape a
criminal offence, saying it wasn't possible to order a change in the law for
one person. The woman had challenged the validity of an exception to Section
375 of the IPC that says sexual intercourse by a man with his wife, who is 15
or above, is not rape even if it is without consent. The provision, the woman
said, violated her fundamental right to life and liberty.
2. A man who allegedly drugged
and raped his wife was acquitted by a Delhi court on 12th May, 2014 after a judge confirmed
Indian rape laws do not apply to married couples. In the judgement, Judge
Virender Bhat stated that, "The
prosecutrix (the wife) and the accused (Vikash) being a legally wedded husband
and wife, and the prosecutrix being major, the sexual intercourse between the
two, even if forcible, is not rape and no culpability can be fastened upon the
accused".
The aforementioned cases clearly portray
our orthodox and stubborn attitude toward the concept of marital rape.
Any judiciary must reflect
the views of society, as its primary duty involves the safeguarding of the
interests of members of society. The fact that our country has a judiciary
which does not support the criminalising of marital rape imply goes to show
that we will never truly realise what a serious problem it is. We at The
InfoMission Project believe that it is time for change and we hope that our
judiciary realises that marital rape is a severe offence and it must be
criminalised as soon as possible.
-Saurav Roy
-Saurav Roy
A The
InfoMission Project writer.
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