By Tarunima Pandey:
“Violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men….”Â (-The United Nations Declaration on the Elimination of Violence against Women, General Assemble Resolution, December, 1993.)
Violence against women and girls continues to be a global epidemic that kills, tortures, and maims-physically, psychologically, sexually and economically. It is one of the most pervasive of human rights violations, denying women and girls’ equality, security, dignity, self-worth, and their right to enjoy fundamental freedoms. Violence against women is present in every country, cutting across boundaries of culture, class, education, income, ethnicity and age. Even though most societies proscribe violence against women, the reality is that violations against women’s human rights are often sanctioned under the garb of cultural practices and norms, or through misinterpretation of religious tenets. Moreover, when the violation takes place within the home, as is very often the case, the abuse is effectively condoned by the tacit silence and the passivity displayed by the State and the law-enforcing machinery.
Violence against women within the family has become a contemporary issue. The physical and sexual abuse of women in public domain and children has become widely recognized. Proper legal regimes have been accordingly implemented for the same. However, there is a curious silence surrounding sexual violence towards wives as wife, family and children are considered as private issues and notion of family rests on the peace and security of women. Though widespread, issues relating to sexual violence or marital rape are still regarded to be a taboo in the society. It is one such heinous crime that has not been enshrined under the penal laws of the Country and no specific law deals with this subject. The author seeks to bring out the laws regarding rape in India while concentrating on the position of marital rape and its recognition as an offence by the system and the attitude of the society and the judiciary towards marital rape.
Marital rape is a widespread problem for a woman that has existed for centuries throughout the world (Russell, 1990). Despite this fact, marital rape has been largely overlooked in the rape and domestic violence literatures. The experience of marital rape has been invalidated for its victims legally, culturally, and professionally. As a result, the proliferation of invalidation continues to have serious treatment implications for the victims of this crime. “Spousal rape, also known as marital rape, is non-consensual sex in which the perpetrator is the victim’s spouse.” 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. Marital rape could be by the use of force only, a battering rape or a sadistic/obsessive rape. It is a non-consensual act of violent perversion by a husband against the wife where she is physically and sexually abused; (Priyanka Rath, 2007).
Marriage has always been known as a sacred institution but, wonder how much of it exists today. Marriage is no more a ‘sacrosanct institution’, for, there are issues within it that have shaken the ground basis of the entire union of a man and a woman and this idea of the “sacrosanct” institution of marriage is a myth and is contrary to women’s perceptions of reality. Marriage now, is just not limited to be a pious union but, on the contrary, it can also come with its own set of problems, including the biggest- that of ‘Marital Rape’ which has become a stark reality of present scenario.
Approximations have quoted that every 6 hours; a young married woman is burnt or beaten to death, or driven to suicide from emotional abuse by her husband. The UN Population Fund states that more than 2/3rds of married women in India, aged between 15 years to 49 years have been beaten, raped or forced to provide sex. In 2005, 6787 cases were recorded of women murdered by their husbands or their husbands’ families. 56% of Indian women believed occasional wife-beating to be justified. In the present day, studies indicate that between 10 and 14% of married women are raped by their husbands: the incidents of marital rape soars to 1/3rd to Â½ among clinical samples of battered women. Sexual assault by one’s spouse accounts for approximately 25% of rapes committed. Women who became prime targets for marital rape are those who attempt to flee. (Priyanka Rath, 2007.)
Marital rape should be recognized by Parliament as an offence under the Indian Penal Code. The punishment for marital rape should be the same as the one prescribed for rape under Section 376 of the Indian Penal Code. The fact that the parties are married should not make the sentence lighter. It should not be a defence to the charge that the wife did not fight back and resisted forcefully or screamed and shouted. The wife should have an option of getting a decree of divorce if the charge of marital rape is proved against her husband. Though a case of marital rape may fall under “cruelty” or “rape” as a ground of divorce, it is advisable to have the legal position clarified. Demand for divorce may be an option for the wife, but if the wife does not want to resort to divorce and wants to continue with the marriage then the marriage should be allowed to continue. Corresponding changes in the matrimonial laws should be made.
Marriage does not thrive on sex and the fear of frivolous litigation should not stop protection from being offered to those caught in abusive traps, where they are denigrated to the status of chattel. Apart from judicial awakening; we primarily require generation of awareness. Men are the perpetrators of this crime. ‘Educating boys and men to view women as valuable partners in life, in the development of society and the attainment of peace are just as important as taking legal steps protect women’s human rights’, says the UN. Men have the social, economic, moral, political, religious and social responsibility to combat all forms of gender discrimination. In a country rife with misconceptions of rape, deeply ingrained cultural and religious stereotypes, and changing social values, globalization has to fast alter the letter of law.
It is conceded that changing the law on sexual offences is a formidable and sensitive task, and more so, in a country like India, where there is a contemporaneous presence of a varied and differentiated system of personal and religious laws that might come into conflict with the new amendments in the statutory criminal law. Further, though, there is need for substantial changes in the law on sexual offences such as making them gender-neutral and eliminating the inequalities, a radical overhauling of the structure of sexual offences is not advisable. The immediate need is criminalization of marital rape under the Indian Penal Code. But, mere declaration of a conduct as an offence is not enough. Something more is required to be done for sensitizing the judiciary and the police. There is also a need to educate the masses about this crime, as the real objective of criminalizing marital rape can only be achieved if the society acknowledges and challenges the prevailing myth that rape by one’s spouse is inconsequential.
Saurabh Mishra & Sarvesh Singh, (2003). “Marital Rape – Myth, Reality and Need for Criminalization”. (2003) PL WebJour 12. Retrieved on 10-2-2011 from http://www.ebc-india.com/lawyer/articles/645.htm
Jennifer A. Bennice & Patricia A. Resick, (2003). “Marital Rape”. Retrived on 10-2-2011 from http://www.sagepub.com/lippmanstudy/articles/Bennice.pdf
Justin Huggler, 2006. “India abolishes husband’s right to rape wife”. Retrieved on 11-2 2010 from http://www.independent.co.uk/news/world/asia/india-abolishes-husbands-right-to-rape-wife-421829.html
Priyanka Rath, 2003. “Marital Rape and Indian Legal Scenario.” Retrieved on 11-2-2011 from http://www.indialawjournal.com/volume2/issue_2/article_by_priyanka.html
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