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Why ‘Indian Culture’ Cannot Be An Excuse To Not Criminalise Marital Rape

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Atrocities against women have been rising tremendously in India in the past few years. Harassment, molestation and rapes are being reported on a daily basis. News is flooded with such reports. With a lack of strict rules and prompt response mechanism, many people with criminal records still roam freely. However there is one particular offence, that is grossly overlooked, free from any prosecution by law; the issue of ‘marital rape’.

Marital rape is when a man has sex with his wife without her consent or forces his wife to have sex with him. Just as domestic violence is punishable by law, so should be domestic sexual abuse. Rape is rape, it’s no different whether done by husband or a stranger. By the end of the 20th century, most of the developed nations had criminalized marital rape, but India still hasn’t.

When the question of criminalizing marital rape was raised in the Parliament, the Union Minister for Women and Child Development, Maneka Gandhi, repeated the government’s stand. She said, “the concept of marital rape as understood internationally cannot be suitably applied in the Indian context due to various factors like level(s) of education/illiteracy, poverty, myriad social customs and values, religious beliefs (and the) mindset of the society to treat the marriage as a sacrament.”

The excuse of poverty and an array of outdated social and religious customs have always been used to stall legal reforms in India. Is poverty or lack of education a justification for a husband to sexually abuse his wife? Sati too was once an acceptable and prevalent cultural practice in India. But, domestic violence is a criminal offence now. Does marriage justify or empower a husband, does it give him a right over his wife?

The opposition to criminalize marital rape is based on the argument that it would ruin the “sanctity of marriage”. Over the decades, marriage in India has been used as a sexual contract that gives men implicit consent for sex. It is used as an ownership right over a woman’s body, her sexuality and her reproductive functioning. Calling sex after marriage a “wifely duty” has to stop. Any form of sexual intercourse has to be based on mutual consent and pleasure, not forced.

The fact that our society is vastly shrouded in superstitions and myths, makes it even more important to establish proper rules to ensure the safety of women. Every year hospitals across the country are admitting married women, who have been repeatedly abused. However, these cases go unreported as marital rape, as per the Indian Penal Code, is not an offence.

Our society openly condemns premarital sex, and treats it as a great offence. This has led many men getting married just for the sake of social sanction to have sex. This puts a great number of women in grave danger, as they are then abused without any legal recourse available for them.

In India, marital rape is not recognised as criminal under law. The Indian culture is such that men believe they have a right over their wife’s body after marriage.

Saying that such a rule would be a threat to marriage is equivalent to saying that sex is the only factor that holds a marriage together. It undermines the love and care in this relationship and advertises marriage as a mere means to have a physical relationship with a woman, without being socially stigmatized. Or, is it because the practice of abuse is so rampant in our country, that the men are afraid to criminalize it?

Even as political parties and ministers boast about India’s growing GDP and its likelihood of becoming a superpower, vast sections of our population still live in the dark ages. Majority of the society is still swayed by religious superstitions and outdated, and in some cases, even inhuman practices such as witch hunting and human “sacrifices”. In such a situation it is imperative for the law to step in and ensure that the voice of the oppressed are heard out loud.

The refusal to criminalize marital rape, is public acceptance that sexual advances and abuse against a women, as long as blanketed by marriage, will be accepted by the society and government, with the perpetrators being scot-free. If women are to gain control of their lives, then they should have the right to say “no” to their husbands without being socially rejected for standing up to protect themselves.

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  1. Vishal Saurav

    In Hindu marriage, satpadi is considered as completion of marriage which includes seven vows which both partners take to each other which constitute conjugal rights and duties of each other. One of the vow includes implied sexual consent to each other. Another vow is vow of husband to provide for and maintain his wife for life.
    Now, You want that husband should respect NO of wife and should be punished for not respecting it. Will you also say that wife should also respect NO of her husband in any aspect including financial? Wife should also respect NO of her husband when he refuses to maintain her. Maintenance includes food, shelter, clothing to everything that a wife needs. So, if one night if husband says NO to maintain her and provide shelter to her she should respect that NO of husband and move out, else she should be punished for house trespassing which is a criminal offence.
    Also, wife should not move to Court demanding maintenance from husband if he says NO to it and our judiciary should also respect NO of husband in this regard.
    If marriage is not a licence to sex for men, it should not be the license to be economic parasite for women leeching upon husband economically.
    As per section 376 of IPC which defines rape, even figuring is considered as rape which effectively means if a man touches Vagina of woman without her consent it is considered as rape. Now if exception provided to husband in IPC 375 is removed, then the law should be made gender neutral for punishing wife with equal punishment if she touches private parts of her husband without his consent.
    Moving a step further like molestation, there should be law against marital molestation with gender neutral perspective. Just as a man is punished for molestation if he hold hand of any woman without consent, a spouse should be punished for holding hand of other without consent or hugging, kissing, cuddling without other’s explicit unequivocal consent for same.
    Along with these, some changes in legal precedence need to be brought to avoid gender discrimination against men. A woman should not be given divorce if his husband says NO to have sex or is impotent. Otherwise it will be like if Wife says No, husband doesn’t listen, he will be jailed for rape and if husband says NO and wife doesn’t listen, wife will be given divorce along with alimony. Will it not lead to injustice to husband? If divorce should be granted on refusal of sex it should not come with burden on any spouse to shell out hard earned money in the form of alimony.

    And now, coming to point how it will be used. You must have heard about IPC section 498A. As per supreme court, it has become tool in the hand of disgruntled wives to run their whim and fancy in Judgement in ‘Arnesh Kumar v/s State of Bihar.’ In that judgement, Supreme Court prohibited arbitrary arrest in any provision of law where punishment is less than 7 years which includes IPC 498A. This led to erosion of power of 498A which was used by wives to settle scores, extort money in form of alimony, counter blast to divorce petition of husband etc. So, those disgruntled wives started adding section 377 of IPC against husband. It means charging husband for ‘un natural sexual acts’ which means oral sex or anal sex. Here, no question of consent and only man is charged with this provision even if wife was equal partner in the act. No medical is done to corroborate wife’s allegations and husband is arrested first and investigation is done later on because it carries punishment of up-to 10 years. It is different matter that till date no husband has been convicted u/s 377 on allegations of wife because first it need to be proved that such act was done and that too without consent of wife. But in between arrest of husband u/s 377 and his acquittal, time and money of husband gets exhausted and at last recourse he files for divorce. He is granted divorce as filing false case against one spouse is considered as mental cruelty by Supreme Court but that too comes with shelling out money in form of maintenance and alimony. It means that husband is punished at every stage even after proved innocence and wife is rewarded even after being guilty of commuting mental cruelty. After criminalizing so called Marital rape, along with IPC 498A, 406, 506, 377; 376 will also be added into FIR and charge sheet in court and more money will be extorted from husband for dropping charges and setting amicably for mutual consent divorce.
    What should be done for those facing so called ‘marital rape’?
    Few days ago, a case came in media where a wife chopped off his husband’s pens because he had refused sex to her and inspite of all her efforts of she could not succeed and she felt embarrassed that she had no kid even after 10 years of marriage. One fine day she HELD his husband’s penis and nearly chopped it off. Police charged her with IPC 323, means causing hurt by lethal weapon.
    If wife can be charged with this offence husbands should also be booked under sections of IPC which pertains to causing physical hurts in case of so called marital rape of wife.

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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

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The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

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Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

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MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

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A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

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A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

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