Tuesday, 17 November 2015

Status of Marital rape in India

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 minuscule 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.

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 unrecognised 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.
marital-rape-poster

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.