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Marital rape is still not a criminal offence in India and a number of women suffer due to it. DOn't you think it's time it was criminalised?
Marital rape is still not a criminal offence in India and a number of women suffer due to it. Don’t you think it’s time it was criminalised?
Criminalising Marital Rape in India is imperative. What is marital rape? Simply put, it is a husband raping his wife. The husbands are protected by the law as it doesn’t hold them liable for punishment for the act.
It gives married women a cold shoulder when it comes to sexual assault against them, thus, worsening their plight. The women are ultimately forced to give in and endure the pain.
In this article, I want to stress on the constitutional aspect of marital rape and why we need to criminalise it.
Under Section 375 of the Indian Penal Code (IPC), marital rape isn’t a punishable offence. According to Section 375, a man is said to have committed rape if he has had sexual intercourse with a woman under circumstances falling under any of the six following descriptions:—
However, the exception to the rule is that a man having sexual intercourse with his wife who is over the age of 15 is not considered rape. It is this exception that brews most controversies.
Firstly, why is the age of the wife considered under 15 years? Isn’t that child marriage? But wait, child marriage is illegal and still performed in our country! Secondly, this compromises the Right to Equality which is a fundamental right held by every citizen of the country.
The Right to Equality empowers the State to make special provision for women and children. And it also prohibits the State from discrimination against any citizen on the grounds of religion, race, caste, sex or place of birth.
Let me give you an example- A family forces a 17-year-old girl to marry a 25-year-old man against her will. The husband rapes the woman. In this situation, she approaches the court for justice. Sadly, her request is ruled out by claiming the husband is punishable and charged with rape only when his wife is less than 15 years of age.
However, 18 is the legal age of marriage in India for women. So the husband shall be punished under the Child Marriage Restraint Act, but definitely spared the rape charges.
They ignore the demographic of entire wives in India for providing justice as per section 376. In such cases, the husbands become more arrogant, harassing women even more after she files a case.
“Intercourse without consent,” is rape. If the wife denies consent or the husband forces her, he still won’t be held accountable as a criminal under Section 375.
If a person has sex with a woman against her will and without her consent, it is considered as rape. Sexual consent is the willful agreement and expressed mutual consent to have sex with the partner.
Now, this doesn’t mean if you have been with someone earlier you have to accept having sex every time. You own the power of acceptance or denial of engaging in sexual activity. Expressing consent is essential every time you get in physical contact with the person.
No always means No. Silence does not convey your will, neither do the clothes you wear. You ask for it, by actually asking for it. It is of extreme significance for both the partners to be precise about this aspect. Forcing is not consent. Assuming is not consent.
We constantly hear things like, ‘He forced her to have sex with him.’ Or people threatening to harm the woman or her family if she refuses the person’s advances to having intercourse.
We also heard of men who had intercourse with women under the pretext of marrying them only to leave them after satiating their own needs. Another thing that is done is drugging women before ‘asking’ their consent and taking their silence as a ‘yes.’ Having ‘consensual’ sex with their a girl under the age of 18 is still considered rape under the law.
According to the law, all of these are examples of rape. Forcing someone either by drugging or threatening them is not consent. However, if a husband forcibly has intercourse with his wife or drugs her in order to do so, it isn’t considered rap by the law, unless the wife is under 15 years of age. Does the law think married women can withstand rape?
Section 90 of the IPC says “consent is not such a consent as is intended by any section of this Code if the consent is given by a person under fear of injury or under a misconception of fact. And if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception. Or Consent of an insane person if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent.
Consent of child unless the contrary appears from the context if the consent is given by a person who is under twelve years of age. Women denying to have sex with her husband because of male dominance, if the partners force his wife against her will, is not considered as Consent.”
Section 375 includes against her will without her consent punishable as rape.
Crimes against women have increased by 16 percent since the implementation of the Nirbhaya Act in 2013. There were a total of 4,05,861 cases of crime against women, registered in 2019. The number reveals a 7.3 percent increase over the last years where the number of registered cases was 3,78,236.
After new provisions were being introduced under the Nirbhaya Act, there was a spike in cases registered. The continuous escalation of registered cases also reveals the other side of the story, implying no transformation in society despite the existence of a vigorous law. Considering negligence as an aspect, there are abundant cases that go unseen because of failure or fear of women acquainted with the law.
In our society, men dominate women, castigate them, and stop them from claiming equality. The dominance of one person, caste, religion, gender, race is condemned, but reality echoes the opposite of all these.
We consider women sacred, in India. However, respect and devotion of this sanctity are only confined to the temples.
We worship the goddess to protect us from evils,
And make the daughters plead for mercy from sinister masked humans.
We accuse women who wear clothes of their choice for the endurance of horrible incidents.
But breakdown when women at our homes suffer the same plight.
You can force your daughters to cover her body,
But who is going to change the demon mindsets with malicious intents?
You become tight-lipped when your daughters confess about sexual violence,
But moan for justice when she gives up on her life.
You shut doors on women who beg for help,
But except someone to help your daughter.
For as long as Patriarchy prevails, Equality departs.
The problem is with the societal mindset and families of women telling them, ‘he’s your husband! You should adjust.’
We need to stop telling women to adjust. It’s time we took action and joined hands in criminalising marital rape in our country!
A version of this was earlier published here.
Picture credits: Still from Hindi movie Heaven On Earth
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My house-help asked excitedly, “I am going for wedding. Can you let me wear your red & black saree? To be honest I was stumped for a moment; I didn’t know what to say but I still said yes.
I lent a gorgeous saree to my house-help for a wedding in her family. Soon I stated getting questions if I would wear that saree again or if I was okay to be seen wearing the same saree my house-help was wearing?
We are all so conditioned to give our used clothes to our house-helps but are we okay to wear the clothes they were wearing?
A few days ago she came excitedly to me, “I am going for a family wedding. I want to wear your red & black saree, Ill wash and give it to you after the function. Please can you let me wear it?”
Beauty is a very clever, very evil capitalist tool. It traps those who have it into hanging on to it for dear life and those who don't into mutilating, torturing themselves to achieve the unachievable.
I recently wrote a piece about MP Shashi Tharoor’s tweet in which he had shared a pic with six women parliamentarians tagging them and saying “Who says the Lok Sabha isn’t an attractive place to work?”
There was a rash of comments on the post shared on Instagram, which ranged from “chill, it’s just a compliment” and “stop overthinking compliments”, to (worried) men lamenting about “these feminazi”.
Here’s my answer to all those comments.
Let's take criminalising of marital rape seriously. Else let’s try telling our daughters that sometimes they will be forced into sex. Even if they don’t want to and they don’t enjoy it, they must.
Let’s take criminalising of marital rape seriously. Else let’s try telling our daughters that sometimes they will be forced into sex. Even if they don’t want to and they don’t enjoy it, they must.
There’s some outcry (as much as can be expected with all that’s going on) on the Chhattisgarh judgement on a dowry case where domestic abuse and cruelty were cited as offences perpetrated by the husband on the wife, in which the judge declared, once again, that marital rape is not criminal. Since the wife isn’t a minor and is legally wedded, forced sex can’t be considered crime when perpetrated by the husband.
Even though there was the recent Kerala judgement which leans much closer to sanity and common sense of justice (in which the judge ruled marital rape to be cruelty and valid ground of divorce), there’s not much point blaming the judge in this Chhattisgarh matter. After all, IPC 375, even in its reinforced post Nirbhaya glory of being as encompassing as possible, puts down an exception for married women when it comes to rape if perpetrated by the husband, unless she is minor. There is also in fact the restitution of conjugal rights matter, in which, a legally wedded wife, can be claimed back by her husband for availing ‘conjugal’ rights – aka sex.
Once married, men think they don't need to ask consent from their wives to have sex. Why are we still so confused about women's rights over their bodies?
Once married, men think they don’t need to ask consent from their wives to have sex. Why are we still so confused about women’s rights over their bodies?
Usually, after a marriage in India, it is implied that both the man and the woman have consented to sexual intercourse. According to the Section 375 of the Indian Penal Code (IPC), rape is any activity that includes all forms of sexual assault involving nonconsensual sex with a woman.
However, there is an exemption to this law too. Exception 2 of Section 375 says that unwilling sexual intercourse between a man and his wife of over 15 years of age will not be classified as rape. It immunises the act of marital rape from prosecution.