What the Union government’s submissions on marital rape in the Delhi high court reveal

[thesolar65]

What the Union government’s submissions on marital rape in the Delhi high court reveal
August 30, 2017, 6:49 pm IST Jiby J Kattakayam in Jibber Jabber | India | TOI
The controversy over marital rape stems from the failure of Indian penal law to criminalise it. Section 375 of the Indian Penal Code, which defines rape, has an exception clause: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” But the main clauses in the section define rape as penetration without a woman’s consent and will. For married women, the only recourse the law offers in instances when intercourse is without consent (can’t call it rape, you see) is the much-maligned Section 498-A IPC (pertaining to cruelty against wife by husband and relatives) and the civil provisions of the Protection of Women from Domestic Violence Act. Let us see how the Union government represented its view that a wife cannot be raped by a husband through its submissions to the Delhi high court

1. Marital rape is not defined in any statue/ laws. While rape is defined under Section 375 of IPC, defining marital rape would call for a broad based consensus of the society. What may appear to be marital rape to an individual wife, it may not appear so to others. As to what constitutes marital rape and what would constitute marital non rape needs to be defined precisely before a view on its criminalization is taken.

Progressive changes in law will not happen with “broad-based social consensus”. The Hindu code laws, abolition of untouchability and zamindari were fruits of the Constituent Assembly and Parliament not waiting for broad-based social consensus. Recall that we have waited for 67 years for consensus on a Uniform Civil Code. The Verma Committee report discusses marital rape across six pages. It was a government appointed committee. It offers nuanced and precise definitions.

1. That it has to be ensured adequately that marital rape does not become a phenomenon which may destabilize the institution of marriage apart from being an easy tool for harassing the husbands. The Supreme Court and various High Courts have already observed the rising misuse of section 498A of IPC.
   

The first inference is that criminalising marital rape can “destabilise the institution of marriage”. Marriage is a contract between two individuals. A contract that allows one party to get away with abusiveness must necessarily be declared void. For those arguing that marriage is a sacrament, can the sanctity of a “divinely ordained institution” be allowed to be sullied by non-consensual sexual intercourse? The notion of “destabising the institution of marriage” is interesting. Only the actions of the individual perpetrating rape can cause destabilisation. The government’s notion that the stability of marriage is maintained by preventing the woman from complaining about rape reveals the true state of Indian society. The facade is more important than the edifice. And so women’s rights must be subjugated.

On marital rape becoming an “easy tool for harassing husbands”, it is assumed that wives will use it to harass husbands, rather than to complain of rape. A RICE Institute analysis of the National Family Health Survey-III (2005-06) data claimed that 6,570 of one lakh women experienced marital rape against 157 who experienced rape by other men. Further, 40 per cent of the married women also complained of domestic, sexual and emotional abuse. So many women are at risk but the risk to harassed husbands is the overwhelming concern. Parity anyone? The misuse of Section 498A is a shameful fact but it is undeniable that it has also given justice to countless women who faced torture. Anyway, the SC’s decision to hold off arrests under 498A without a magistrate’s order has brought about a noticeable change in its misuse.

1. …If all sexual acts by a man with his own wife will qualify to be a marital rape, judgment as to whether it is a marital rape or not will singularly rest with the wife. The Question is what evidences the Courts will rely upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man and his own wife.
   

It is no one’s contention that “all sexual acts” will qualify as marital rape. The alarmist ring to “all” is unmissable . Only non-consensual acts come under scrutiny. There are instances of courts convicting accused even in the absence of medical evidence, and in cases where complaints are brought to the police, weeks, months or years after commission of an offence. The mere difficulty of adducing evidence cannot be ground for not criminalizing an offence.

1. That the Law Commission in its 172 Report titled Review of Rape Laws and the Department Related Parliamentary Standing Committee on Home Affairs in its 167th Report examined the matter and did not recommend the criminalization of marital rape. Even though the Justice JS Verma Committee in its Report titled “Amendments to Criminal Law” recommended that the exception to marital rape be removed, it also pointed out that it is also important that the legal prohibition on marital rape is accompanied by changes in the attitude of prosecutors, police officers and those in society generally, Thus merely deleting the exception 2 of Section 375 may not stop marital rape. Moral and social awareness plays a vital role in stopping such an act.
   

The 172nd report of Law Commission running into seven chapters devotes one paragraph and one sentence in that paragraph to summarily reject the demand to criminalise marital rape. Again the 136-page 167th report of Parliamentary Committee on Home Affairs restricts its views to a few sentences and concludes, with circular reasoning, in this age of nuclear families, “that institution of family is able to resolve the problems”. Even the Verma Committee report’s reference to desired changes in the attitude of prosecutors, police officers and society is wrongly construed to mean that it is pointless to criminalise marital rape. The Committee refers to high rates of marital rape even in societies where it is criminalized and observes that this is compounded by low conviction rates and poor reporting. The Verma Committee notes: “Changes in the law therefore need to be accompanied by widespread measures raising awareness of women’s rights to autonomy and physical integrity, regardless of marriage or other intimate relationship.” Clearly, rather than the Verma Committee’s desire to raise awareness among women on their right to autonomy and physical integrity, the government is more keen on “moral and social awareness” which is a euphemism for appealing to patriarchal notions of honour that tell men to respect women and do the right thing.

1. That the fact that other countries, mostly western, have criminalized marital rape does not necessarily mean India should also follow them blindly. This country has its own unique problems due to various factors like literacy, lack of financial empowerment of the majority of females, mindset of the society, vast diversity, poverty, etc. and these should be considered carefully before criminalizing marital rape.
   

The IPC is a western creation. So are most of our laws. If conservative interests had their way India would still be stuck with Manu Smriti, Shariya and Canon Law, or at best a society where rights are doled out through the magnanimity of upper caste, and upper class, men. The British Raj did not incorporate the exception for marital rape in the IPC out of respect for Indian sentiments. The common law of coverture that evolved over several centuries in England deemed a wife to have consented at the time of the marriage to have intercourse with her husband at his whim. It was only by the 1980s and 1990s, that Britain, US, and some other Commonwealth nations updated their laws. So this West-East binary does not pass muster. Literacy, mindset of society, lack of financial empowerment, vast diversity, and poverty are just excuses. How has the government concluded that married women in rich families do not face marital rape? Gender insensitivity does not distinguish between rich or poor in India.

1. That criminal law is in the Concurrent List and implemented by the States. There is a vast diversity in the cultures of these states. It is necessary to implead the State Governments in the matter to know the opinion of these states to avoid any complications at a later stage.
   

The vast diversity becomes a non-issue when the Union wants to prohibit cattle slaughter or impose Hindi. Concepts like “vast diversity” and gender equality are like apples and oranges, impossible to juxtapose. If anything, patriarchal concerns will bind the Centre and state governments in their opposition to marital rape. But the significant amendments to sexual offfence laws in 2013 did not wait to secure state government approval. A married woman in Kashmir and Kanyakumari, Hindus and Muslims, need equal protection of the law.

Criminalising marital rape can be the starting point for a host of awareness measures and institutional support mechanisms. From the government’s submissions it appears that the state is primarily interest in fending off the challenge to “family” than resolving the problems that can crop up when a marriage turns abusive. Wives are being told to grin and bear. For their silence, they will be deified as mothers and daughters and epitomes of chastity. Will judicial interpretation of constitutional position on rights trump political hypocrisy on gender rights?

http://blogs.timesofindia.indiatime...marital-rape-in-the-delhi-high-court-tell-us/

 

[thesolar65]

Government’s refusal to criminalize marital rape is unjust, inconsistent
Justifying sexual violence by husbands in the name of protecting family values only perpetuates it, shows NFHS data

The Narendra Modi government has filed an affidavit in the Supreme Court arguing against criminalizing marital rape. Doing so would “destabilize the institution of marriage, apart from being an easy tool for harassing husbands,” it says.

The government has also argued against a plea demanding that 18 years be made the minimum age for consummation of marriage for child brides. Such positions are in contrast with the forthright stand taken by the government against triple talaq which challenged retrograde religious orthodoxy. By doing this, the government is effectively shrugging off responsibility towards millions of women who face sexual violence from their husbands. Statistics also show that couples who have seen such violence among their parents are more likely to experience it themselves. This means that justifying such acts in the name of stabilizing families only perpetuates them.

The National Family and Health Survey periodically asks questions about sexual violence by husbands and other persons against currently married women aged 15-49 years. Questions include those about women being forced to have sexual intercourse or engage in specific sexual activities without consent or being threatened into doing so. While a lot of data for NFHS 4, which was carried out in 2015-16, has been released, information on sexual violence has been withheld.

Mint has looked at NFHS 3 results for 2005-06 to look at the extent of sexual violence. Among married women aged 15-49 years, 8.2% have faced sexual violence at least once. According to the 2011 census, there are 230 million married women in India in this age group. This means that around 19 million of them could have faced sexual violence.


Click here for enlarge
An overwhelming majority of these acts are committed by husbands. A 2014 paper by Aashish Gupta of the Research Institute for Compassionate Economics (Rice) has used NFHS 3 data to show that husbands were responsible for 6,590 incidents of sexual violence per 100,000 women. Other men were responsible for 157 per 100,000 women. Only 0.6% of sexual violence committed by husbands was reported to the police. This figure was 5.8% for similar crimes committed by others.

Women who are subjected to sexual violence are more likely to face serious forms of physical and emotional violence than those who only suffer physical violence, according to NFHS statistics.

Ignoring these crimes in the name of stabilizing the institution of family has only made matters worse. If their mother was beaten by their father, both husbands and wives are more likely to inflict/experience sexual and other forms of spousal violence. The consequences are more severe for women.

To be sure, India is not the only country where women are subjected to sexual and physical violence by their intimate partners. The Rice paper quotes United Nations Women 2011 statistics to show this the problem persists in both developing and developed countries.

Also, lack of prosecution is only a part of the problem. Entrenched patriarchal notions have legitimized such violence even among women. More than four in 10 women who had experienced physical or sexual violence felt that wife-beating was justified under various excuses.

These figures underline the need for undertaking both legal and social reforms to deal with the menace of sexual violence by husbands against their wives. While numerous organizations have been fighting against this social evil, both the previous and present governments have refused to make the required legal reforms.

According to a 2011 census, there were 212,000 Muslim women who had been divorced. Only a fraction of them are likely to have been victims of triple talaq, as there are other ways of divorce within the Muslim personal law. Millions of women are subjected to sexual violence in the name of marriage and cannot seek recourse to law. There cannot be any consistent explanation for the government standing by the former and abdicating the latter’s cause.

http://www.livemint.com/Politics/Co...iminalize-marital-rape-is-unjust-and-inc.html

@Joe Shearer @Soumitra @jbgt90 @gslv @nair @Nair saab @ranjeet @SrNair @anant_s @Skull and Bones and finally @Levina

This is going in my mind since last 5days, whether to post this or not. Well, I am past the age where this will NOT affect me personally though...if it becomes criminal!

Remember dowry law? Now the SC has said that police cannot arrest immediately on the basis of a complaint....driving a sigh of relief into the future FIL and MIL, SIL, BILs etc. when I got married....after one year my parents sensed trouble brewing and with apprehension asked me to move out to another house(rented one) to save themselves. Though in the last 25 years nothing happened and now all is well. We have our own house.

But now we are on the time where my parents once stood.....i.e we are being ready to bring our first SIL (in about 3 years) and then next DIL. Now we are having apprehensions. what to do?

For that we have already purchased two flats (2BHK) so that we can ask the two couple to shift as soon as possible after marriage or to stay there whenever they come for vacation. But the plan is to avoid harassment during our old age.

But what about the new law(it will become law at some point of time)? If my son or SIL will be affected?
My daughter will become a lawyer after 20 months and she has very opposite views against mine. I am a sanghi(liberal), but she is a in your face ...what she feels is right.

or Am I becoming Paranoid?

 

[anant_s]

Dada, two issues.
One, misuse of any law is not new in India we all know how anti dowry law is used several times against a person especially when someone is hellbent to prove other person wrong. So while a large part of statistic you have mentioned above is certainly true, we cannot rule out its misuse in many cases. But it also remains true that like domestic violence, marital rape is a sad reality and in most cases woman remains a mute victim. The problem is a large majority of these victims don't even know existence of such laws for their protection and mostly it is on help form NGOs or Helplines that such cases come out in open.
With increasing economic freedom to women and awareness, i'm sure in next two or three generation's time, such social problems will get largely resolved without requiring any law.
Second, (i say this as a parent myself) when there are marital problems or rough patch we all go through during married life, my point of view is to first talk with your partner and as next step to parents. Its often that breakdown in communication that leads to failure at step 1 and ego for failure at step 2.
With urbanization and both partners following an independent career path, its not uncommon to hear stories of strained relationships but my take is that absence of patience in dealing with issues is a major cause behind these problems.

 

[Joe Shearer]

The problems that you have brought up are clear and evident, but I simply don't know what to say about them. Let me lurk on this for the time being.

 

[ranjeet]

We don't need this social justice crap anymore, this particular issue can be addressed through 498A. What we really need to do is bring in a law for women who are misusing this.

 

[paritosh]

We don't need this social justice crap anymore, this particular issue can be addressed through 498A. What we really need to do is bring in a law for women who are misusing this.

spot on bro. How can you prove marital rape? It's senseless to separate marital rape from domestic violence

Dada, two issues.
One, misuse of any law is not new in India we all know how anti dowry law is used several times against a person especially when someone is hellbent to prove other person wrong. So while a large part of statistic you have mentioned above is certainly true, we cannot rule out its misuse in many cases. But it also remains true that like domestic violence, marital rape is a sad reality and in most cases woman remains a mute victim. The problem is a large majority of these victims don't even know existence of such laws for their protection and mostly it is on help form NGOs or Helplines that such cases come out in open.
With increasing economic freedom to women and awareness, i'm sure in next two or three generation's time, such social problems will get largely resolved without requiring any law.
Second, (i say this as a parent myself) when there are marital problems or rough patch we all go through during married life, my point of view is to first talk with your partner and as next step to parents. Its often that breakdown in communication that leads to failure at step 1 and ego for failure at step 2.
With urbanization and both partners following an independent career path, its not uncommon to hear stories of strained relationships but my take is that absence of patience in dealing with issues is a major cause behind these problems.

Why should marital rape be treated any different from domestic violence? How do you prove marital rape?

 

[thesolar65]

@Spring Onion

I would like to hear your views regarding this. Not as Pakistani or Indian, but from a woman's POV. This may sound weird, but if you are young and when you become old, you also will face these kind of problems from your children?

 

[Spring Onion]

@Spring Onion

I would like to hear your views regarding this. Not as Pakistani or Indian, but from a woman's POV. This may sound weird, but if you are young and when you become old, you also will face these kind of problems from your children?

Well personally I believe anything that is imposed by force is an offense/ a crime.
As far the law or criminalizing marital rape well not only the subcontinent context but the West (keep in mind we desis consider US the west )also marital rape and rape are treated differently till few years back.
For example till few years back in as many as eight states in the US marital rape was semi legal wherein the preparator husband could have leverage. I do not know about the current situation
So lets not jump the bandwagon in attempt to appear more liberal or champions of justice without taking the complexity of our asian societies into consideration. It is a very complex issue and i feel with passage of time our subcontinent societies will find a middle path which could deal with this issue effectively.

As the indian court rightly points out many concerns linked to the issue we must take into consideration all these sides. For example this is very valid point that how would you prove a marital rape in the court of law?
Further more as you and many fear the law would be misused but having said that I believe every law can be misused by one or the other party hence it does not mean we should not criminalize marital rape. It is a crime and we should work towards legislation.