Marital rape: trivialization vs criminalization - Part II

Continuing the previous post Marital Rape: Trivialization vs criminalization - Part I

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.]

Marital rape: trivialization vs criminalization - Part I

In the aftermath of Nirbhaya BBC documentary, the country came out united. Who would agree with Mukesh Singh's justification to rape? I guess, only miniscule proportion.  Now consider another case, Suppose a person did the same with his wife. I guess these will be the most probable reactions- 1. Aadmi hi vaaiyad tha (the man was beast),  this was an unacceptable act, so she should have gone for legal remedies, and if left to us, we would have lynched him 2. It is not possible marriage is a sacred institution, the wife should have been lying, moreover it is their personal matter and wife has already given consent to have sex at the time of marriage  (any third moderate reaction is welcome).

Though marital rape has been an issue of political and social debate for a long time without any conclusion yet. Lets try to demystify it.

What is marriage?

It is a social and legal institution  in which two people mutual consent to work out things together in the train of life.

What is marital rape?

Marital rape (also known as spousal rape) is non-consensual sex in which the perpetrator is the victim's spouse. It is a form of partner rape, of domestic violence and of sexual abuse.

What does the data say?

Out of the total number of rapes reported to NFHS(though it is an informal survey whose premise was to provide anonymity), 97.7% rapes were committed by the people known to the victim, out of which marital rapes accounts for 2/3rd. UN study has established the fact that 75% men want their wives to agree to sex. There have been many heartrending stories of women raped every night, even during pregnancy and child birth. It is a physical as well as mental trauma because the perpetrator is known to the person, often very close. It is a bitter reality even in developed nations.

Why all the fuss now?

Recently during parliamentary proceedings, a minister reacted on a question regarding the status of marital rape in India, “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”. Other proponents of the marital rape exception, also, argue that it is essential to preserve the integrity of marriage, which is a crucial social institution, so marital rape cannot be brought within the purview of rape law.

What are the possible reasons?

Though we can easily attribute the prevalence of patriarchal mindset as the main reason, yet there are many deep rooted causes.

According to NFHS survey around 74% marriages in India occur without due consent of the bride and the groom. How can we expect two strangers to be very comfortable with each other at the very first night? And the same thing becomes routine due to lack of any firm resistance. We, as a society are stuck in the bus vs bedroom debate and usually make a remarkable difference between the two. If a woman is getting raped in a bus it is rape, but in bedroom it is a ritual. This trivialization of marital rape is one of the major reasons for the perpetuation of the same.

Moreover, there is huge divide across the society. Though, the main victims are women, yet in most cases it is the elder women who give formal acceptance to marital rape by putting it in the category of necessary adjustment or "compromise" in a marriage. And it goes on and on across generations, and we consume this culture of adjustment. Forced sex has become a “wifely duty.”

Another important reason is economic dependence of women on their husbands and in-laws. Rape every night and domestic violence becomes a small price to pay, when basic survival is at stake.


To be continued...

Modern Feminism = Equality?

This article addresses a very sensitive topic, especially for women.  We are going to look at the concept of Feminism, origin and necessity of the idea and it’s modern transformation.

Feminism is a movement and not a nuisance

As Wikipedia says, Feminism is a collection of movements and ideologies that share a common goal: to define, establish, and achieve equal political, economic, cultural, personal, and social rights for women.

The origin of these movements and ideologies lies in the fact that our society has been male dominated (patriarchal) for a long time.  For such a society, women’s standing up for their rights of equality seems like a nuisance, instead of a fair call.

However, the proponents of feminism based it on the fundamental idea of equality for all.  Taking into account the reality of Indian villages and small cities where women are still treated as second grade citizens, feminism has always been a necessity.

Feminism and Affirmative action

Affirmative action (vaguely similar to reservation in India) for oppressed and backward classes of the society is closely related to the concept of feminism in the sense that they both seek to provide favorable conditions for the section they want to benefit by violating the principle of equal opportunities.  Simply put, they use inequality in competition to provide equality in standard of life.

Modern Feminism

There is no such real term as modern feminism; I am using this term, as I could not find anything more suitable. Although the original motivation for feminism still applies and there is still a lot of work to be done, it is growing into something undesirable in some sections of the society.

The original concept behind feminism was and will be of equality rather than preferential treatment or superiority. The cases where men see women as inferior are the majority, but, I have come across women who put all men (except may be their brothers and father) into the same bucket of being perverts, dominating or extremely rude. The negative traits mentioned here are individual characteristics and have equal probability of being present in women as in men.

It’s a known and researched fact that media has been commoditizing women in India. They are not portrayed as source of inspiration, rather, as source of pleasure or a thing to use. The so-called modern Indian woman has so accepted this portrayal so blindly that if a man tries to challenge this image (sometimes it’s not a challenge, but just a display of male dominance, but as women, we should learn to differentiate between the two), he is hated, scolded and put in the same bucket of having an orthodox patriarchal mind set.

As I already mentioned that feminism does not promote preferential treatment either (there is a difference between preferential treatment and affirmative action). Recently, on social media, I saw a girl beating a man who was teasing her after police arrested him. There is no problem in standing up against eve teasing, but feminism does not give you permission to break the law, unless you need it for self-defense.

Conclusion

The idea is that the concept of feminism is very fundamental in the sense that it only demands equal treatment for women as men, and it should be promoted in a male dominated society. However, women should also learn to treat men as equals, rather than inferior (or superior).  Promote equality through affirmative action not preferential treatment. 

My friend: he or she?

How will the world be like if divided into two groups - feminists and male chauvinists or better to say misandrist and misogynist? Obviously we don’t want that, we have grown up watching both the genders existing together in families and other social webs.

Lets start from most fundamental relation in this world- friendship. The problem of what ‘type’ of people one should and should not befriend, has been asked in every house atleast once in a life. Most of the time, these questions revolve around the prejudices and stereotypes formed due to differences in culture, religion, region, intelligence and gender. Yes, gender too, probably this is one of the strongest stereotype derived from bollywood movie's dialogue- "Ek ladka or ladki kabhi dost ni ban skte"(Courtsey: Kuch kuch hota h). It is simply assumed that they have nothing in common and their discussion will their interaction will always end up in romance.

If a girl has a lot of male friends it's common for her parents to ask "tumhare class me koi ladkiyan nahi padhti ya tumahri ladkiyo se kyu ni patti?" Its people's mentality to think that if a girl and boy are friends then there is something else going on between them.

Lets argue about it logically, what are the benefits of having opposite gender as friend and what are the cons of not having so.

First, this friendship will create a healthy perspective and develop rational thinking.

Second, this will burst the stereotype and reduce the gender gap because you are personally aware of the other person. Stereotypes like superiority of male over female, female as second fiddle, girls need protection, boys don’t cry, will be extirpated from the society.

Third, society at the large will be more tolerant and acceptable to the differences.

Fourth, mingling up of opposite genders will create respect for each other, as it is already proven that kids who mingle up with the opposite gender are more social and adjusting. In the absence of which men may grow up to be indifferent, insensitive and inconsiderate towards women. Women may grow up to be paranoid, disgusted of men.

If not given a chance to understand the dynamics of different genders by mingling, this will create permanent conditioning in the mind of both the genders. We have already been witnessing gender violence, rape culture, fraudulent dowry cases against men due to this lack of understanding and crude mindset. All these things are a big blow to the society.

As far as friendship is concerned, it doesn't have any limitation on the basis of same sex, age, culture, color, race or religion.  It is purely a pious relationship between individuals who share their personal thoughts amongst each other, have trust and understanding. We should never try to bind it with our hard fencing like prejudices. Just imagine the happiest moment, if your friend is with you in your happy as well as sad moments in front of whom you need not pretend to be someone you are not.

Male & female are suppose to be the ‘Yin & Yang’ energy of the universe. And in the most fundamental relation of friendship, we should make multiple small happy universes.

This is the politics and conspiracy of the society we have been born into. Something as fundamental as friendship can also be the reason for division, how vulnerable we are?

If still you don’t believe in the above post, go and watch Friends serial, that a boy and girl can be "just friends".

Juvenile justice: Retribution vs Rehabilitation

In recent past, due to many serious crimes committed by juveniles, the trial process and the severity of their punishments has been a matter of debate. One of the most disturbing acts involving a juvenile was the recent Nirbhaya rape case, where the victim was severely molested ending up dead after fighting for life for a fortnight in the hospital.

The biggest controversy in the context is whether the Juvenile Justice Act 2000 holds significance for heinous crimes like the Nirbhaya case or not. The Juvenile Justice Bill 2014 recently got the nod of cabinet treats juveniles in age group 16-18 as adults for heinous crimes. Should the juveniles be given more liberal trials and punishments for their crimes, or should they be punished equally as adults for heinous crimes like rape, following the public sentiment?

Since this is a very debatable issue and opinions vary from person to person, I will not try to support a specific point of view. However, I would rather take a balanced approach to look at the matter, present arguments in favor of and against the public sentiment and the JJ Bill, 2014; and leave it to the reader to choose a viewpoint.

Who is a juvenile?

The United Nations Convention on the Rights of the Child defines a child/juvenile as any human being under the age of eighteen, unless the age of majority is attained earlier, under a state’s own domestic legislation.  The nations that ratify to this convention are bound to it by international law.  Since, India is also a signatory of this convention, the juveniles in India are people under the age of 18 (since the age of majority is also 18), which is also mentioned in the Juvenile Justice (Care and Protection of Children) Act, 2000.

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The Juvenile Justice Bill 2014

The bill replaces JJ Act, 2000 and addresses children in conflict with the law and children in need of care and protection.  Following are some of the important and debatable points in the JJ bill that are relevant to this article:

·         The bill defines three classes of crimes for dealing with a juvenile i.e. petty, serious and heinous.

·         The bill permits juveniles between the ages of 16-18 years to be tried as adults for heinous crimes. Also, any 16-18 years old, who commits a lesser, i.e. a serious crime can be tried as an adult only if he/she is apprehended after 21 years of age.

·         Juvenile Justice Boards (JJB) and Child Welfare Committees (CWC) will be constituted in each district.  If the juvenile in question is in the age group 16-18, the JB will decide whether he/she is to be tried as an adult i.e. whether the committed crime is heinous. The CWC will decide the care and protection needed for the child in question if  (s)he is to be tried as a juvenile.

Support: Retributive justice to those old enough:

This is the most popular of the public sentiments, with public demanding severe punishments to those committing heinous crimes and equal punishment to 16-18 year old juveniles. I have used the term “retributive justice” because the situation can in some ways be equated to the argument of “Capital punishment or not” in case of heinous crimes, since the boundary between a juvenile and an adult is drawn based on the severity of the crime.  Following are some of the points in support:

·         If they are old enough to commit a crime (old enough to rape), they are old enough to be granted the punishment.

·         The boundary between a juvenile and an adult should not be so crisp. This will allow for different punishments for people who differ by just a day in age (on boundary of 18 years), which is not fair. So, severity of crime should also be a deciding factor in whether the person is juvenile or adult.

·         Severe punishments to everyone who commits heinous crimes will act as deterrence, because it will reduce the likelihood of criminals getting away with minimal punishment on false grounds of being underage.

Criticism: Give reformative treatment to children

Most the criticism is based on the idea that reformative justice should be preferred over retributive justice wherever it is possible (which ideally should be in every case).  Following are the arguments given by the people who oppose the JJ bill:

• Parliamentary Standing Committee found out that such a move violates our constitutional mandate and India's obligation under UN's Convention on the Rights of the Child
• MoWCD: One must not forget that juvenile justice law is based on a strong foundation of reformation and rehabilitation, rather than on retribution.
• The bill does not clarify whether a child tried as an adult will end up in prison (during trials)
• Flawed assumptions- determining their maturity and mindset, as deterrence. 
• [Research Network on Adolescent Development and Juvenile Justice at MacArthur Foundation, U.S.]: shows that human brain undergoes key physical changes from the ages of 16 to 18 and this continues right until the mid-20s
• Adolescents know what they are doing is wrong. But They are unable to act on that knowledge. The underestimate risk; so, deterrence is probably not the best policy against them.
• Adolescents are greatly affected by their environment. So they can be molded in a better person too. Transferring them into adult prison would have negative effect on them.
• Transfer policies have generally resulted into subsequent crimes.
• We should focus more on eliminating core problems that lead to such acts like – poverty, broken families, unemployment, access to pornography etc. and providing community based treatment programs.

Conclusion:  Is age really a deciding factor?

As we can see that the proponents of the JJ bill say that age should not be a deciding factor when a crime is so severe. However, the argument against the bill tries to give a scientific perspective of how age is an important deciding factor into a person’s maturity and tendency to estimate risk of a crime. It is up to the reader to take away whichever point of view suits him/her. However, it is clear that overall societal structure and a futuristic attitude should be taken against such problems which minimizes the risk of such crimes in future.

India: Perfect Imperfections

Are you an Indian? A disappointed Indian. Are you the one who pick up

the Indian newspaper or watch an Indian news channel in the morning to destroy own happiness and descend the ladder into depression?

Probably you are one of them(I am the one)?

What is the first image most of us have in our mind, when we talk about India? It is  poverty, destitution, over population, corruption, starvation, crime rates and terrorism. 

 

Indianness has become the passion only at occasional times, either when Indian cricket team is playing in the stadium or when some neighbor knocks our country's borders. On 15th August or 26th Jaunary, it again gets highlighted in the form of selfies(with flag) or facebook statuses.

In the normal times, we are looking to move away from this nation. The number of H1B visa applications (2.5 lakh this year) is the testimony to the fact that people want to leave this place. Probably because this is the place where opportunities are in numbers one could hardly rely on for the safe future. Probably, because this is the land of problems.

Today, the people of India are so blinded by the problems in their nation that they have forgotten the great wealth that lies within. And maybe, just maybe, it is the fault of the Indian media and our prejudices formed because of it.

Why do most of us have so much hatred against the police men irrespective of the fact that we have faced their atrocities or not?

We cry foul against system so much about the system, that we even forget to thank NDRF(National Disaster Task force) for its efforts in the extreme conditions.

It will be a herculean task to enumerate all the achievements of India[neither I am a politician who will like to do the same]. But one hardly pays attention to those achievements today.

At the maximum sympathetic attitude, we attribute India having too much potential in manpower, wealth(may be black money), natural resources, but unable to tap it. Here again we blame the 'system'. True, the people are not corrupt, but the system is. But isn't the case everywhere else? India’s political structure is no more corrupt than any other nation. It is just that the Indian people needs to change its parameters to judge the situation of the country. The institutional failures or the systemic failures can only be corrected by the people facing it.

Lets be more grateful and  responsible citizens and consider this nation as a family where it is not feasible to put the precondition of  keeping all the pieces right. It is not wrong to put problems in perspective, but it is definitely wrong not to revel in what we excel. Self confidence not the false pride is the need of hour.

"Google for Google" : no results found : What would be the life then?

Google has become sort of bail-out package for many lives including me. Though it is just another search engine, it has set a bar to the search industry and revolutionized the web today. What if the word "Google" disappears from the world. There is no search engine like Google. What will be your reaction? OH! What! I cant live any longer! I am all alone!

For a moment, lets assume this apocalypse be true. Now what, Wont there be any life then? A famous saying goes as :

"if you dont do your work , somebody else will."

If there was no Google, there wont be any googlization but yahooization or bingization had been the possibility.

If there was no Google maps, mind would have to work a bit more (our grand parents did that and travelled all across the world)

If there was no Google search engine functionality, would countries not develop(O come on China is developing astonishingly even without it)

If there was no Google plus, couldn't the families stay connected (facebook is there). And probably without all these there will be much more real interaction between family members.

If there was no support of Google search engine, wont there be any discoveries, inventions or advancement of human life. Infact, we had a number of revolutions before the present IT revolution. Our food was as delicious as today even before the recipes provided by Google.

If there were no Google ads, won’t the people be not able to knew about the brands in the world? Infact many a times, ads misguide us and get us to a number of unverified information.

If there were no Google, won’t there be any education. Infact I can go to this extent that, Google has killed the institution of teaching. It has become a cheatsheet while doing homework freeing students to think creatively.

If there were no Google, would there be slow pace of learning? Infact it has made us rely on it, and we have become like we do not want to learn because we can get everything, anytime on Google.

If there were no Google, the companies won’t have progressed.

Is the current generation really lucky that they have Google in their times?

I don’t fully agree to this. Kids get to know things they are not supposed to know, or supposed to know from their parents, because goggle cant teach you how to behave morally. They have loads of information, and unable to find what is important for them (the problem of excess).

(Being a Computer engineer, couldn't miss this part- coding without Google.)

I would ask a simple question. How was Google born? There were coders who develop Google without using Google. Probably Google has made coding accessible to many. But its not behind one's coding acumen. Infact it has made us dependent on it. We need to check syntax every now and then. We don’t even try to stress our brain to memorize any of it.

I have read it somewhere that Einstein used his maximum portion of his mind. Probably because there was no Google at that time. Are we making our mind idle deliberately and loving this comfort zone?

At the end, I would say probably we love Google for its compactness- a complete package for most of our needs. Had Google not been there some other company would have been at its place.

Disclaimer: The article is not written to belittle the famous company but just to point out that life is not that dependent on Google. And putting it in the list of things necessary for survival doesn’t hold truth.