Why should it be banned?
Marital rape is considered as the violation
of Fundamental Right guaranteed under Article 14 of the Indian
constitution which guarantees the equal protection of laws to all
persons. By depriving married women of an effective penal remedy against
forced sexual intercourse, it violates their right to privacy and bodily
integrity, aspects of the right to life and personal liberty
under Article 21, by differentiating them from unmarried women.
Marital privacy – which justifies laws such
as the marital rape exception –
is a fundamental denial of society’s commitment to treating all persons
with equal concern and respect.
After
making high pitch for the government flagship Beti
Bachao beti padao, we want our 'Beti' to not have a right on her own
body.
If
marital rape has been committed, wife is a rape survivor and she has same
rights like any other rape survivor.
Don’t
women have a right to live a dignified
life even after marriage? I think, this is not true in the current setup. If it
was that, then government would have continued the schemes like Sukanya
Samraddhi even after marriage. Parents too would have shared the responsibility
of a girl child even after marriage like they do for boys. Does marriage
provides the license to rape? Hopefully, No. Sexual violence within circle of
trust is more painful and the absence of a
law to safeguard the same is a human right violation and unjust
towards women.
What are the flaws with the legal
system?
Our
legal system doesn’t provide any concrete protection to the victims of marital
rape. Under Hindu marriage act, 1955 one of the "conjugal duties" of
the wife is to provide sexual satisfaction to her husband, a very archaic
thought congruent to the thoughts of a patriarchal society. Section 375 of the Indian Penal Code(IPC) considers
forced sex in marriages as a crime only when the wife is below 15 or the couple
is legally separated. Thus, marital rape is not a criminal offense under the IPC. Marital rape victims have to take recourse to
the Protection of Women from Domestic Violence Act 2005(PWDVA).The PWDVA, which
came into force in 2006, outlaws marital rape. However, it offers only a
civil remedy for the offence.
It is not the case that these irrational acts have not
been up for revision. Law Commission's report(2000) and Justice Verma
panel's(2013) recommended to do away with the exemption granted to marital rape
in the laws. Unfortunately, these were not
accepted by the government and the marital rape continues to
be unrecognized by law. Parliamentary committee
opposed the Verma commission proposal saying that entire family
system will be brought under great stress if the Marital Rape is
brought under the law.
But it is prone to misuse?
Proponents
of marital rape exemption argue that if legalized, this law is prone to misuse
as is the case with The Dowry act. I do agree with the same because it is
really difficult to prove the charges of marital rape. It is worse when we rely
on the methods like two finger test for proving charges of rape in general.
Here, I
would say that every law is prone to misuse, let it be a dowry act or an anti
defection law, yet we have to accept that the misuse is at the part of
investigation.
Moreover,
don’t we have acts like Prevention of Atrocities Act(SC & ST), 1989 and
similar laws against discrimination? Aren't they prone to misuse? Because here
also you have to rely on the statement of the victim prima facia. It can also
be used to harass someone. Just because of this lame skepticism, we should not
try to evade from our responsibility.
Why isn't law ahead of prejudices?
In a
recent case of marital rape, a 27 years old woman herself went up and
approached court for marital rape. The court made a superficial assessment and
concluded by saying that we wont serve any individual case and asked the victim
to come up with a PIL, thus denying to serve the plea. Isn't this absurd that a
person cannot stand for himself/herself? I used to think that this is the most
conventional thing that a person can seek justice for himself/herself.
Similarly, political parties have divisive opinions. Few of them want consensus
building in society as a pre-requisite to come with a law. As if society was
ready for the revolutionary acts like Untouchability Act, Transgender Act,
Child labor Act or affirmative action for vulnerable sections.
What is the international scenario?
Many
countries have made it a crime for a husband to force his wife to have sex in
recent years. Malaysia changed its laws to that effect in 2007; Turkey in 2005;
and Bolivia in 2013. The United States began criminalizing marital rape in
1970s and most European countries in the 1990s. The United
Nations has also recommended India to criminalize marital rape. Though we
try to emulate US in many areas to prove ourselves as progressive, doesn’t this
law provide the opportunity for the same?
Implementation Challenges in criminalizing marital
rape
The
major challenge is to prove the crime, what shall be the evidence? How will the
investigation proceed? Charges of marital rape can be put up just to take
revenge and settle scores. There is an enormous amount of social stigma
attached to the marital rape. However, the picture is not that bleak as it
seems. It is not the going to be the case that just after criminalizing, there
will be plethora of cases. As we can see there is nearly 10% conviction rate in
normal rapes and dowry cases. Marital rape is a very grey area, so its fate
stands tough time. In present times, it may be very difficult to enforce too.
But shouldn't the laws and their implementation envision a equitable future and
a utopian society.
Is reconciliation not the only solution?
I agree
and advocate for couple counselling in cases of differences and argumentative
fights. But it cannot be the last resort. There has to be some mechanism on top
of it for very abusive relationships.
Isn't the act of considering women as the victim all
the time feminist and skewed?
True, it
is. Cases of sexual assault against the transgender community are not currently
prosecuted as rape under Section 375, which only recognizes women as
victims. Here I would like to refer Justice Verma Committee recommendation
to amend the section to make it gender neutral with respect to the victim.
Because it can be anyone, a man, a woman or a transgender.
What if a man has no sex for a year, can he force his
wife? Isn't it about the fairness to men also? What remedy does he has?
For this
question, I would say this is a valid ground to have a divorce, so go for it,
but why to impose your will on someone else. Respect comes before love and much
before sex. If someone is not able to earn that respect, then one should have
no right to love other person.
What is it that I am up against?
I am not
the extreme leftist person who wants a revolutionary change in laws and want to
prosecute half of the country in one go. What I am against of, are the blatant
statements made by our lawmakers and even institutions of high respect.
Though
the enforcement may be a challenge, but the arguments like, the society not
being ready to accept, or crying foul of our backwardness doesn’t hold any
water. Atleast they should not set the wrong precedent of trivializing the
marital rape. It has actually legalized marital rape(make it permissible and
even encourage by vindicating marital rape) in negative sense rather than in
positive sense (to prevent it). It is well accepted truth, that many rapes are
going on in bedroom then why we are still in denial mode considering marital
rape as an exception?
Marital
rape clearly reveals our gross double standard on sexual violence.
Way forward
I understand, this issue is sensitive. It took around
30 years for US to come to the present law which got started only with heinous
nature of marital rapes. Can't we try to implement it in such a phased manner?
Atleast in the cases where it is clearly visible, where a woman has undergone
tremendous injury, it should be made punishable as a criminal offence.
Before
2012, it was an odd act to even talk about rape, but it was the solidarity of
the nation that came along with Nirbhaya, and today majority of people can
condemn the act by taking its name literally. I hope marital rape will also get
the same recognition.
We need
a social reform because legal reform not sufficient, dowry is still embedded in
our society after 10 years of its existence. It is the progressive social
consciousness which is need of the hour.
Sexual
consent is the right of every woman, married or unmarried, as much as of men,
and nonconsensual sex should be treated exactly the same, irrespective of the
relationship of the perpetrator to the victim.
It is
the inner khap panchayat in us all.
[Meanwhile
do watch movie Aakashvani to get a practical picture of marital rape in our
society.]