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The ordinance on sexual violence against women, drafted following the recommendations of the Verma Committee, has triggered a wave of protest by NGOs and women’s organisations.A major drawback, according to protesters, is the failure to include marital rape and sexual violence by men of the armed forces against women in the conflict-ridden areas of the North East and Jammu and Kashmir.
Sudha Sundararaman, General Secretary, All India Democratic Women’s Association (AIDWA) said in a telephonic interview, “The Criminal Law (Amendment) Ordinance has been undertaken hastily. When the Government is trying to improve the overall legal system, it should not have done an arbitrary pick-up of issues.”
“The definition of sexual violence has been widened with the inclusion of acid attacks and stalking. But why leave out rape within marriage?” she added.
The Justice Verma Report says in Chapter 2 on ‘Gender Justice and India’s Obligations under International Conventions’: “The Committee is conscious of the recommendations in respect of India made by the UN Committee on the Elimination of Discrimination against Women (CEDAW Committee) in February 2007. The CEDAW Committee has recommended that the country should ‘widen the definition of rape in its Penal Code to reflect the realities of sexual abuse experienced by women and to remove the exception of marital rape from the definition of rape.” Despite Finance Minister P. Chidambaram’s assurance to the media that no recommendations of the Justice Verma panel had been rejected, issues such as marital rape find no mention in the ordinance.
Marital rape or rape within marriage is a significant but often overlooked aspect of sexual crimes against women in the country, activists say.
One of the biggest obstacles in recognising it as an offence is the nature of Indian society.
Young girls are brought up with the notion of the pati (husband) being the parmeshwar (God) who has absolute right over his wife. Society does not recognise non-consensual sex in marriage to be a crime against the woman.
A man forcing himself on his wife is seen as claiming his conjugal rights. Mohan Kumawat, Director at ANHAD Media said, “Marital rape is a more dangerous form of sexual violence. A rape is normally a one-time occurrence, but marital rape allows for the victim to be raped over and over again. And the perpetrator here is not a stranger but the husband.”
Such cases go unreported as victims do not confide in either their family or friends due to the stigma that goes along with accusing your husband of raping you.
“The notion is that when a man comes home tired after a day’s work then the wife must not refuse his advances. The problem here is that woman’s labour at home and the workplace is ignored. She becomes a mere object of pleasure for the man,” Kumawat added.
The Indian legal system does not recognise rape within marriage. Section 375 of the IPC mentions as an exception: “Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.”
According to Section 376, the rapist should be punished with imprisonment for at least seven years, which may extend to a 10-year term or even life-term. In addition to this, the rapist shall also be liable to fine unless the woman raped is his own wife, and is not under 12 years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to 2 years with fine or with both.
The legal age for marriage in India is 18 years and the law protects girls only up to the age of 16.
A woman can seek legal recourse only under Section 498 (a) of the Domestic Violence Act of the IPC according to which: “Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. The offence is cognisable, non-compoundable and non-bailable.” Proving the crime and providing evidence is another ordeal for the victim.
As of 2006, marital rape is prosecuted in as many as 104 countries including the US, Britain, Canada, Brazil and France. Among India’s neighbours, Nepal and Bhutan consider spousal rape a crime.
(Aslesha is a student of the Asian College of Journalism, Chennai.)
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