Marital rape: Why is it legal in India?

[Kairi]

Marital rape: Why is it legal in India?
By Monica Sarkar, for CNN
Updated 1526 GMT (2326 HKT) March 9, 2015

(CNN)In India, a staggering 94% of rapes are committed by perpetrators known to the victim, but hidden from view is a huge number of women with no legal road -- those raped by their husbands.

The number of women sexually assaulted by their husbands is 40 times the number of women attacked by men they don't know. Yet, marital rape is legal.

The Criminal Law (Amendment) Act, 2013, states: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."

And the law remains despite challenges from individuals and organizations.

Last month, an Indian woman who claimed she was brutally raped by her husband requested the court to acknowledge marital rape. But her pleas were dismissed because it was "an individual case."

"It's hard to register a case of sexual assault against a husband," says Supreme Court lawyer Karuna Nundy to CNN. "The fact that marital rape is legal makes it even harder."

Lawmakers also presented a report to parliament in 2013 opposing the view that such assaults should be criminalized.

"If marital rape is brought under the law, the entire family system will be under great stress," the report said.

The Protection of Women from Domestic Violence Act, passed in 2005, enables women to access civil remedies for domestic violence including sexual abuse.

"In cases that are few and far between, lawyers are starting to use sections 354 and 377 when a wife wants to prosecute her husband for sexual abuse," says Nundy.

Section 354 punishes "assault or criminal force to a woman with intent to outrage her modesty." And section 377 penalizes "carnal intercourse against the order of nature" -- a law that also subsequently reprimands homosexuality.

But rape within marriage is not explicitly acknowledged.

The Justice Verma committee, set up by the Indian government, submitted a report recommending legal reforms to reduce violence against women. Although some changes were implemented, the suggestion to make marital rape illegal was disregarded.

Some point out that the law does not favor all men.

"For instance if you look at section 375, the rape of a man or transgender is legal," says Nundy.

"There's a gender issue behind that. And the gender issue is that you're a lesser man if you are raped." She says that such offenses are therefore rarely prosecuted.

However, India is not the only country where the husband is given such precedence. For example, as the graphics above illustrate, in Singapore, a man is not guilty of rape if the victim is his spouse and over the age of 13, except if the couple are living apart due to separation or divorce of where there was a court injunction, restraining or protection order in place. And in Malta, a violent abduction can be dismissed if the perpetrator marries his victim, with consent.

Also, as Nundy points out, in England, it was not until 1991 that marital rape became punishable by law, and 1982 in Scotland.

But there are many reasons given as to why its legality persists in India. "... It comes from a sort of Victorian, patriarchal morality. And misogynists in parliament today have failed to get rid of it," says Nundy.

India is not able to differentiate between sex for purpose and sex for pleasure; sex should only be for purpose.

Deepak Kashyap, psychologist

Some believe sex is perceived differently. "It's because we don't understand sex," says psychologist Deepak Kashyap, who runs a private practice in Mumbai.

"India is not able to differentiate between sex for purpose and sex for pleasure; sex should only be for purpose. And you are duty bound to give children and you are duty bound to have sex with your husband."

A study of how men perceive their gender roles also found that the majority felt they could overpower women. Although it is pointed out that the sample is not representative of all men in India, 75% of those questioned expected their partners to agree to sex.

A recent BBC interview with one of the attackers involved in the gang rape and murder of a student on a bus in Delhi in 2012, a notorious incident that led to a mass outcry, also revealed shocking patriarchal attitudes towards the crime.

Kashyap argues that Indians have misinformed discussions about sex.

"Firstly, we have no sex education. And if we did, God forbid if we went and told them [students] that it's about pleasure as well and it's not just for purpose... Sex education has been opposed vehemently by a lot of politicians."

"In some schools under the Central Board of Secondary Education (CBSE), there was a provision for it [sex education] but there were a lot of concerns where some people were not comfortable with it," says high school teacher Ratna Mahapatra, 45, from Kolkata.

In Kashyap's day-to-day counselling of married couples in India, he finds that they hesitate in being open with their feelings.

"Well, the general kind of sense that I get is that women are not able to express their bodies as much as a man and their desires and what they would like, which are not normal [in their view]."

And services like his are few and far between. "The ones that are available are unregulated, very expensive and seen as an anomy. You have to be mad to go to a psychologist."

Some women in India take advantage of the digital age. "Everything I learnt [about sex or sexual relationships] is from online," says Preethi Ramamoorthy, 24, from Chennai.

"The internet is an amazing resource -- an ocean of knowledge," says Ruchita Gopal, 24, from Mumbai. "That's my primary source for any kind of information on the subject."

And patriarchal attitudes have existed from their childhoods.

"[A marriage is] a social construction people in India are forced to undertake," says Ramamoorthy. "And my views are being perpetrated by my parents themselves."

"It is perceived that the husband has full right to be physical, in whichever way he feels like, and the wife has agreed to marry knowing fully well that she has to give in to the demands of her husband," says Mahapatra.

"However, it would be wrong to assume that there is marital rape in all marriages," she adds.

Mahapatra also believes the internet should be used to promote change. "Women should be taught to be more assertive. Social welfare advertisements and documentary films should be telecast in social media."

For legal reform to take place, Nundy believes that pressure should be applied to those in power.

"I think if there's enough pressure on the government and the political entireties that support it, and if they realize that there's too much of a political cost, whether it's in terms of women's and men's votes, or a just court order."

Kashyap wants to see today's youth better informed. But he also holds the view that it would take something drastic, such as the provoking gang rape, in order to spur change. And even then, there's a long wait.

"Social changes don't happen overnight. They take generations to come."

Full article  -  http://edition.cnn.com/2015/03/05/asia/marital-rape-india/index.html?sr=fb031515indiamaritalrape1230pVODtopLink

[Kairi]

One of the things not specifically stated in the article is the reality that many men believe themselves to have a proprietary right or interest in the body of a woman he is in a relationship with, to such a degree, that she can be bullied, pressured or outright manhandled into submission against what her own wishes/intent would be as regards her physicality, relative to what he wants.  This "right" is what the laws seems to uphold and rape is not the only way this can manifest.  Patriarchial attitudes are not confined to India but the issue is being highlighted from there nonetheless. 

From a female perspective, regardless of the degree of relationship, being able to say no and have that be respected, is an important part of any person's development. 

[Kairi]

"The government does not yet dare to tackle marital rape because it strikes at the heart of the arranged marriage system.

It's a shock to realise that in a large section of the country, the assumption is that a woman loses her right to a lot of things when she gets married, but these people would be horrified if you said they were sanctioning rape.

Marriage is based on his family's consent rather than hers. In most arranged marriages, you marry a stranger and he has rights over you; you hope he will be kind and sensitive but there's no guarantee. So when you say sex within a marriage requires a woman's consent, people in India can't get their heads around it."

- Nilanjana Roy, writer, asking for legal recognition and punishment, for rape of wives by their husbands.

[Kairi]

MARITAL RAPE : HOW GOV'T JUST LOOKED THE OTHER WAY
Abhinav Garg,TNN | May 15, 2014, 12.31 AM IST


NEW DELHI: A Delhi trial court's recent decision acquitting a man of the charge of rape because the woman he had sex with forcibly happened to be his wife has once again turned the spotlight on marital rape. The colonial era Indian Penal Code saves such errant husbands from punishment due to the presence of section 375 which despite being amended in 2013 for the benefit of rape victims doesn't recognize rape within marriage.

Though the Justice J S Verma commitee set up after the Nirbhaya gang rape and murder case recommended overhaul of existing rape laws to bring married women also within the ambit of sections 375/376, the government baulked. Failure to extend the protection provided by Criminal Law Amendment Act 2013 to married women is the key reason why additional sessions judge Virender Bhat acquitted the husband accused of raping his wife.

While the government's view that eventually prevailed has been that criminalizing marital rape would weaken traditional family values in India, and that marriage presumes consent, women's rights organizations have blamed the trial court for its decision.

The target of National Federation of Indian Women's (NFIW) ire should not be the court but Parliament which allowed the section 375 exception to continue in the statute book. Well-known lawyer Naina Kapur, whose landmark petition led to the 1997 Supreme Court Vishakha guidelines for preventing sexual harassment of women at workplace, says the government should apologise for existence of such a law.

"When we talk about human rights and sexual harm, we can't distinguish it on the basis of gender. Sexual harm in any way is non-negotiable, (and) marriage can't be seen as a licence to rape. Then we might as well allow child rape. Just because violence happens within the four corners of a home, it can't be legalized," Kapur explains.

As part of the Justice Verma committee, Kapur strongly advocated doing away with the protection granted to marital rape and eventually the committee did recommend doing away with the exception. Kapur opines the legislature, by disagreeing with the committee on this aspect, condoned a form of violence against women.

In the post-Nirbhaya din on changing the definition of rape to make laws stricter, marital rape was discussed at best on the margins. For advocate Arvind Jain, it has been a central theme of his fight in Delhi high court. It was Jain who challenged in 2009 the protection granted to marital rape in IPC by way of a petition in the HC where he also sought removal of section 196 of CrPC that bars a court from taking cognizance of marital rape cases.

"The provision of marital rape has been removed by more than 80 countries, including next-door neighbours, like Nepal. Even in UK there is no protection. But our law has made life miserable for a married woman post-2013 amendments. It has silently granted an unqualified licence to the husband to treat his wife as 'chattel' and exploit her in any cruel, nasty and spiteful way as he wishes to," says Jain.


Article link  - http://timesofindia.indiatimes.com/city/delhi/Marital-rape-How-govt-just-looked-the-other-way/articleshow/35126803.cms

[Kairi]

This is a blow to the development of Women's Rights in India...



MARRIAGE SACRED, CONCEPT OF MARITAL RAPE CANNOT BE APPLIED IN INDIA : GOV'T

HT Correspondent, Hindustan Times, New Delhi| Updated: Apr 29, 2015 23:18 IST


The government told Rajya Sabha on Wednesday the concept of marital rape cannot be applied in the country since marriage was treated as a sacrament or sacred in the Indian society.

The government's stand came against the backdrop of the UN Committee on Elimination of Discrimination against Women recommending to India to criminalise marital rape.

"It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament," Haribhai Parathibhai Chaudhary, minister of state for home, said in a written reply to question from DMK MP Kanimozhi.

Kanimozhi had asked the home ministry whether government will bring a bill to amend the IPC to remove the exception of marital rape from the definition of rape; and whether it is a fact that UN Committee on Elimination of Discrimination against women has recommended to India to criminalise marital rape.

She had also said that according to United Nations Population Fund that 75% of the married women in India were subjected to marital rape and whether government has taken cognisance of the fact.

Marital rape refers to 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.

Chaudhary said the ministry of external affairs and ministry of women and child development have reported that UN Committee on Elimination of Discrimination against Women has recommended to India to criminalise marital rape.

"The Law Commission of India, while making its 172nd Report on Review of Rape Laws did not recommend criminalisation of marital rape by amending the exception to Section 375 of the Indian Penal Code and hence presently there is no proposal to bring any amendment to the IPC in this regard," the minister said.

It may be recalled that the Justice J S Verma Committee set up in the aftermath of the Delhi gang-rape incident to suggest changes in the criminal law had recommended that the exception for marital rape be removed from the Indian Penal Code(IPC).

"The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape," the Verma Committee had said.

However, the government did not accept the recommendation.

The Parliamentary standing committee on Home in its report on the Criminal Law (Amendment) Bill, 2012 agreed with the view of the Home ministry that criminalising marital rape would weaken traditional family values in India, and that marriage presumes consent.

It said accepting marital rape as a criminal offence could lead to "practical difficulties"

The decision to exempt marital rape has also been fiercely opposed by women's groups.

Article link  -  http://www.hindustantimes.com/india-news/marital-rape-indian-society-nda-govt/article1-1342255.aspx

[Kairi]

NOT-A-RAPE RAPE

Anahita Mukherji | May 10, 2015, 06.16 AM IST


Every time India is forced to confront the issue of marital rape, the country's parliamentarians trot out a laundry list of arguments against criminalizing the act. Foremost among them is the idea that marriage is sacred in India. But for many women across the country, marriage is about as sacred as being trapped in Guantanamo Bay Some of the forms of sadism practised in Indian marriages would make a prison guard cringe.

Take, for instance, the case of a woman from Vadodara whose hands and feet were bound while her husband forced himself on her. "This was because she objected to certain sexual acts," says Rita Chokshi, a counsellor at Gujarat-based women's rights organization Sahiyar.

Halfway across the country, Kakali Bhattacherjee of Swayam, a Kolkata-based women's group, recalls a case where a man made his wife fold her knees after which he had sex with her. "She found this unimaginably painful but went along with her husband's wishes," said Bhattacherjee. She talks of a bizarre case where a man would insert his toes into his wife's vagina. Another man forced his wife to have sex during labour pains.

If perpetrated by strangers, these acts would constitute rape. But according to the Indian Penal Code, "Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape". While the Justice Verma Committee -set up after the Nirbhaya rape case -recommended criminalizing marital rape, the parliamentary standing committee headed by the BJP's Venkaiah Naidu rejected the proposal. "If marital rape is brought under the law, the en tire family system will be under great stress...," noted the committee in 2013.

Ten days ago, minister of state for home affairs, Haribhai Parathibhai Chaudhary, said that marital rape as understood internationally couldn't be applied to India, due to factors like illiteracy, poverty, social customs, religious beliefs and the treatment of marriage as a sacrament.

Many women would disagree. Like the courageous young woman who moved the Supreme Court on marital rape earlier this year. Last week, on a TV debate, she spoke of how her husband had inserted a torch inside her.

Lest this be seen as exceptionally violent, women's organizations say it's not uncommon for men to insert objects inside their wife's vagina. However, Manisha Gupte, co-convener of rural feminist organization MASUM in Maharashtra's Pune and Ahmednagar districts, says such acts should be viewed in terms of consent and not morality. "It's important to examine non-consensual marital sex even if it is not marked by outward signs of violence," says Gupte. She talks of a young bride whose husband would expect to have sex for six to eight hours a night after using Viagra, leaving her in so much discomfort that she could barely walk the next day. Even though she had become fond of him otherwise, she left for her parents' home and threatened suicide if she were made to return to him, "In this case, his explicit intention was not to harm her, but he inflicted great pain in playing out his performance anxiety as a newly married man, without any concern for her feelings or health" says Gupte. Such is the patriarchical mindset that women are not supposed to enjoy sex. "If they do, they're not viewed as good women. In order to respect a woman's right not to have sex when she doesn't want it, we must respect her right to ask for sex when she wants it," adds Gupte.

Women lodge complaints of physical abuse, but do not want to talk of marital rape so statistics are hard to get. "We received 2,325 women from 2001-2011, 79% of whom were married, of which 48% reported sexual violence within marriage," says Sangeeta Rege of Dilaasa, a hospital-based crisis centre set up in Mumbai as a collaboration between CEHAT and the BMC.

"Other forms of domestic violence such as broken bones and cuts are easily visible, but women won't utter a word about sexual violence within marriage, even when they're bleeding and can barely walk," says a spokesperson from Vimochana, a Bangalore-based women's organization.

When 15 women in Mumbai came forward to register complaints of marital rape in response to an initiative by CEHAT and Mumbai's municipal corporation between 2010 and 2014, the police didn't know what section to file them under.

"A 28-year-old woman was so violently assaulted by her husband that she was bleeding and suffered anal tears.

In the absence of a law criminalizing marital rape, the police ended up reporting the incident under Section 377 of the IPC, the controversial section that outlaws homosexuality, or rather, all sexual acts "against the order of nature."

While this includes anal sex, which would effectively criminalize a homosexual relationship, it can also be used for anal sex between a man and woman. "This is counter-productive in light of all the efforts being made to repeal section 377," says Rege.

The only recourse is in the Protection of Women from Domestic Violence Act, 2005. "The domestic violence act was used in two cases of marital rape in Maharashtra, one involving a man who administered electric shocks to his wife's private parts while the other was about a man who used extreme force while having sex with his wife on the hard floor of their village home in Raigad. Both times, the women were given protection under the domestic violence act. However, the men were not punished for what they did," says Maharashtra-based advocate Manisha Tulpule. Had the offence been perpetrated by a stranger, he would have been booked for sexual assault but since the perpetrator is a woman's husband, he may get away scot-free.

Article link  -   http://timesofindia.indiatimes.com/home/sunday-times/deep-focus/Not-a-rape-rape/articleshow/47219344.cms?utm_source=facebook.com&utm_medium=referral&utm_campaign=TOI