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Rape and Human Rights Violations in India

A rape accused in India has been acquitted after he proved in court that the woman he was accused of raping was his wife. He said she filed the case against him under pressure. The accused produced a marriage certificate to prove his claim.

Marital rape is still legal in India while the neighbouring Nepal has long back outlawed it.

The Supreme Court of Nepal has declared that husbands who force their wives to have sex can now be charged with rape.

The landmark ruling issued last May was a result of a July 2001 petition filed by the Forum for Women, Law and Development, a women's rights organisation in Nepal.

The 15-page decision declared that marital sex without a wife's consent constitutes rape. It also said that religious texts do not condone men who rape their wives. The court added that Hinduism stresses conjugal harmony based on mutual understanding between husband and wife.

The court ordered Parliament to amend the current rape law to reflect its latest ruling but did not set a deadline for its completion. The amendment also has to undergo royal approval.

Nepal's current rape law states that charges of rape can be filed against a man, not a husband, who has had sexual intercourse with a woman under 16, with or without her consent, or who has had forced sex with a woman over the age of 16. Men found guilty face prison sentences between six to ten years for rape of girls below 14 years of age and between three to five years for girls and women over 14.

Cultural factors also hinder most abused wives from pressing charges against their husbands, the groups said. Often, women face retaliation and social disapproval. Wives also think twice about fighting for their rights when they are economically dependent on their husbands.

Women's groups said that while the high court ruling was welcome, having a law on marital rape is not enough. FWLD President Sapana Pradhan-Malla said that recognising marital rape as a crime is only the first step in eradicating it. She stressed the importance of strict enforcement and the dissemination of information that would make women more aware of the problem and help to create an environment where victims can come forward without fear.

Right now, free legal aid to women is available at the Kathmandu Legal Aid Consultancy Centre. There is also a Women's Rights Helpline Project run by the Centre. Nearly 6,000 women have sought help since the Helpline's creation in 1999. Most of the women are seeking separation and divorce from their abusive husbands. Until the amendments are incorporated, legal aid workers refer to existing laws in the Civil Code to help these women, but these laws are ineffective in proving marital rape.

Rape is the most heinous offence committed on a woman. It is worse than a murder. The victim dies a thousand deaths, even when she is alive. Although it is not her fault, in every case of rape we have seen, without exception, the violated woman is discriminated against and made to feel as if it is she who is the criminal. Society looks upon the offenders with a kinder and more lenient eye. Every woman dies within when she is raped. In India, however, a husband cannot technically rape his lawful wedded wife, since he will merely be deemed to be part-taking his conjugal rights!

When one mentions the word rape, the tendency is to think of someone who is a stranger, an evil, malicious person. No one ever thinks of rape in the context of marriage. Women themselves find it difficult to believe that a husband can rape his wife. After all, how can a man be accused of rape if he is only availing of his conjugal rights?

Despite the unwillingness to recognise marital rape as a crime, the fact remains that marital rape is prevalent throughout society. Women’s bodies are outraged, regardless of their educational qualifications, class or status. Women themselves don’t make a noise about it or talk about their experiences. This is because cultures worldwide discourage their women from openly discussing sexual matters, let alone within marriage. Most women don’t even think of rape by their husbands as marital rape.

Various subliminal messages across the media and through society encourage young boys to believe in the sexual availability of women. Men begin to believe that decision-making is their sole prerogative, that their wives do not have any rights in most matters, that their wives are subject to them in every respect. Even educated persons, who would otherwise treat women with the utmost respect, would think nothing of having sex with their wives, against their wives’ wishes.

Social beliefs are only reinforced by the lacunae in the law. As of now, Indian law contains no provisions for helping abused wives and penalising guilty husbands. Women have no legal recourse. What is worse, women are not even aware that they don’t have to meekly give in to their husband’s demands.

According to section 375 of the Indian Penal Code, "sexual intercourse by a man with his own wife, not being under 15 years of age, is not rape." On the other hand, the Criminal Procedure Code states that `it is rape if the girl is not the wife of the man involved and is below 16!’ Which means that if the girl is not the wife of the man involved and is below 16, it is rape even if she consents. Whereas if she is a wife and above 15 years of age, it is not rape even if she does not consent.

A woman who has been raped by her husband cannot count on the legal system coming to her aid. Not only are there no laws to protect her interests, the large number of loopholes make it difficult for her to seek protection under the law. These include:

Though protection of the dignity of women is a fundamental duty under the Constitution, domestic violence and rape do not come under the definition of dignity.

A husband cannot be prosecuted for raping his wife because consent to matrimony presupposes consent to sexual intercourse.

Though women's rights advocates secured a legal clause in 1983 under which it is unlawful for a man to have sexual intercourse with his separated wife, pending divorce, the courts are reluctant to sentence husbands in spite of the law.

Rape laws are covered under Sections 375 and 376 of the Indian Penal Code. Under these sections, rape is seen only in terms of penile-vaginal penetration. It does not include, for instance, anal or oral penetration. It does not include penetration by objects. It certainly does not include the rape of boys and men. There is no concept of marital rape. And don’t even think of date rape.

As a result of these loopholes, very often, judges find themselves trying 'rape' cases under more watered down sections: 'outraging the modesty of a woman', for instance. Goes without saying that these sections carry lighter punishments — if in fact the case ever reaches the conviction stage.

In an ongoing case, an eight-year-old girl was sexually abused by her father and his colleagues. The mother found out and lodged a complaint. When the case came up for trial in the lower courts, the judge ruled that he could not try it under sections 375 and 376 (which carry a punishment of 10 years). The girl had been penetrated by a finger — she had, therefore, under the law, not been raped. The case is now pending in the Supreme Court. The petitioners have asked the judges for a review of the definition of rape.

In March 1972, Mathura, a 16-year-old tribal girl from Chandrapur district, Maharashtra, was taken to the police station by her brother and other relatives as they were concerned that she was under age and yet was attempting to elope with her lover. The two policemen on duty said they wanted to record Mathura's statement when she was alone. They raped her, while her relatives waited outside. The Sessions Judge held that since she had earlier eloped with her boyfriend, she must have been habituated to sex, and, hence could not be raped. The High Court reversed the judgment, sentencing the policemen to six years in prison. In 1979, the Supreme Court again reversed the order. The judges felt that since Mathura had not raised any alarm, and since there were no visible injury marks on her body, she must have given her consent.

The Mathura rape case galvanised the women's movement into asking for reforms of the criminal law that dealt with rape. In 1983, the government passed the Criminal Law Amendment Act, which created a rebuttal presumption in cases related to custodial rape. The government also made amendments stipulating that the penalty for custodial rape should not be less than seven years' imprisonment; and it provided for in camera proceedings and made the disclosure of the victim's identity a punishable offence.

These amendments were not enough to stem the rise in the number of cases of sexual violence against women. One crucial defect in the law was the definition of rape under Section 375 of the Indian Penal Code (IPC), which took into account only penile-vaginal penetration. Other physical and mental injuries were left to be dealt with under Sections 354 and 509 of the IPC as `outraging the modesty of a woman'.

In 1997, Sakshi, an organisation involved in issues on women and children, approached the Supreme Court through a writ petition asking for directions concerning the definition of rape in the IPC. The Supreme Court then directed the Law Commission of India to respond to the issues raised in the petition. The Law Commission, under the chairmanship of Justice P. Jeevan Reddy, responded by saying that the 156th Law Commission Report had dealt with these issues. The Supreme Court, however, agreed with Sakshi that the 156th Report did not deal with the precise issues raised in the writ petition. In August 1999, it directed the Law Commission to look into these issues afresh.

The Law Commission then prepared a draft of its comments and invited Sakshi to give its views on changes to the criminal law. Later, three other organisations, Interventions for Support, Healing and Awareness (IFSHA), the All India Democratic Women's Association (AIDWA), and the National Commission for Women (NCW) also presented their views on the matter. After detailed consultations with these organisations, the Law Commission released its 172nd Report on the Review of Rape Laws, in 2000.

The Law Commission recommended changing the focus from rape to `sexual assault', the definition of which goes beyond penile penetration to include penetration by any part of the body and objects, taking into account cunnilingus and fellatio.

The report recommended the deletion of Section 155(4) of the Indian Evidence Act, which would prevent a victim of rape from being cross-examined about her `general immoral character' and sexual history. It suggested graded sentences, with higher punishment for rape committed by the relatives and persons in `trust or authority', public servants, and superintendents, management and staff of hospitals. It introduced a new Section 376(E), which would include sexual harassment at the workplace.

The commission recommended shifting the burden of proof of consent to the accused. It suggested specific provisions that would deal with the medical examination of the victim as well as the accused by a registered medical practitioner. It said that girls who are victims of rape should be questioned only by a female police officer, in the absence of whom a qualified woman from a recognised social organisation should do the questioning.

The commission suggested that the law relating to sexual assault be made gender neutral, that is, men and women can be charged with the rape of men, women and children. This meant that for the first time the sexual assault of minor boys was made prosecutable under the law. It asked for Section 377 of the IPC to be dropped, thus decriminalising sodomy.

However, the recommendations did not take into account marital rape. It raised the age of consent of the wife from 15 to 16 years, after which the woman is not protected from rape by the husband. It also continues to provide a window for Judges to reduce the sentence in case of convictions below the minimum sentence specified, as suggested by the commission which states: "Any number of situations may arise, which the Commission cannot foresee that may necessitate the awarding of a lesser punishment."

Many women's rights, child rights and sexual minority groups, which were unhappy with the Law Commission's recommendations, met in Mumbai in 2001. Though they welcomed the expansion of the definition of sexual assault, the recognition of child sexual abuse, and the modifications to the Indian Evidence Act, they felt that the process involved was not consultative enough and that making rape laws gender neutral would lead to the misuse of the law, as rape was a gender-based crime. They also disapproved the fact that the recommendations did not take into account marital rape.

Women's groups in Delhi then began extensive discussions with AIDWA. Based on these discussions, Kirti Singh of AIDWA drafted an alternative Bill, which was then circulated. Meanwhile, the Women and Child Department (WCD) of the Central government, based on the recommendations of the 172nd Law Commission Report, began drafting a Criminal Law Amendment Bill or the Sexual Assault Bill. It held a meeting with a few women's groups in Delhi and representatives from some State governments, to discuss the draft Bill. Vrinda Grover, a lawyer present at the meeting, said that Delhi-based organisations asked the WCD to consult organisations all over the country, which worked on child rights, women's rights and the rights of sexual minorities.

So far this year, there have been 382 reported cases of rape in Delhi alone. The latest report of the National Crime Records Bureau (NCRB), published by the Union Ministry of Home Affairs, shows that the number of reported cases of rape nationally has increased from 15,151 in 1999 to 16,496, an increase of 6.6 per cent.

Based on the Law Commission's recommendations, the government enacted an amendment in the winter session of Parliament in 2002, which deleted Section 155(4) and inserted a proviso to Section 146 of the Indian Evidence Act, which means that a victim of rape can no longer be questioned about her past sexual conduct and her `general immoral character'. There has been no sign of the government implementing the rest of the Law Commission's recommendations.

Deputy Prime Minister L.K. Advani has on more than one occasion publicly declared that rapists should be given the death sentence. There is a broad consensus among women's groups that such a move would be counter-productive. According to a report on the study of rape laws released by the NCW in 2000, the rate of convictions for rape, already as low as 4 per cent, would decrease further if rape was made an offence punishable by death.

The Sexual Assault Bill seeks to reform only a small part of the wide-ranging reforms that the women's movement has been demanding since Mathura. Says Kalindi Deshpande, national treasurer of AIDWA: "The legal framework must be used to seek justice for women. We need to wait for the next Parliament session to mobilise lobby for a Bill on Sexual Assault." Vrinda Grover adds: "What we need is a more participatory process where groups working on the issue from all over the country are given a chance to make their submissions. But the fear is that the government will not take all this effort seriously and will come up with a distorted version."

For reform of rape laws to be effective, it has to be accompanied by a much wider range of actions to tackle patriarchal institutions including the judiciary and the Central and State Legislatures, which will have to pass the law. Ratna Kapur from the Centre of Feminist Legal Research (CFLR) asserts: "There has to much more of a rights-oriented approach. It is easy for everyone to support legal initiatives around sexual wrongs, but when you do not have simultaneous movement to support sexual rights, you will end up with a highly moralistic and protectionist piece of legislation."

It is not as if women's groups or even the government aren't seized of the inadequacies in the law. In 2000, in anticipation of Women's Empowerment Year 2001, the Planning Commission set up a task force with the brief to review existing legislation related to women and children.

It made four recommendations: the most significant of which related to the need to change rape laws, asking that the definition of rape be broadened to include all forms of sexual abuse. A Law Commission report, also asking for a wider definition, has been gathering dust.

The National Commission of Women has identified nine areas of review including the review of the definition of rape, a reduction in procedural delays and death penalty to persons convicted of rape.

Indian rape legislation (Penal Code 375) specifically exempts marital rape. This allows husbands to have complete sexual control over their wives, in direct contravention to Human Rights regulations. Only those married women who are separated from their husbands are covered by the rape legislation. The law simply echoes what social mores often take for granted: that women have no right to their own bodies; their will is subject to that of their husband.

A faint hope was raised by the Law Commission in its 42nd report. This report advocated the inclusion of sexual intercourse by a man with his minor wife as an offence. But a joint committee reviewing the proposal dismissed it.

More recently, the National Commission for Women released a report, "Rape: a legal study," which stated that marital rape should be recognised as a criminal offence.

All over the world, steps are being taken to ensure that marital rape is regarded as an offence. In India, however, it hasn’t even begun to be admitted that marital rape is a reality, let alone an unpleasant one.

Unfortunately, a mere amendment in the law will not ensure that women get their due. Before marital rape is made an offence, the police and the judiciary must be sensitised to deal with rape cases. Sadly, in India, marriage is considered the definitive experience in an adult woman’s life. Consciously or otherwise, a woman is given to understand that her desires and dreams must henceforth be subject to those of her husband. Under such conditions, women find it difficult to talk about the physical violence that takes place under the guise of conjugal relations in the marriage. Any mention of rape or sex fills them with shame.

The prevalent viewpoint is that when a woman marries, she is willing to fulfilling her husband’s conjugal rights. Once she has made this commitment, she cannot back out of it. Since sexual relations are part of the marriage set-up, a woman cannot refuse to have sex with her husband. By the same token, a husband cannot be said to have raped his wife.

In India, marriage remains the only route to social acceptance of adult womanhood: there are strong social incentives on women to enter into marriage. The same reasons act as a negative motivator, prompting women to stay in abusive marriages, simply because life outside marriage is not regarded very highly.

Accepting that women go through the most heinous forms of abuse under the name of marriage may be the first step towards protecting women. Until then women will continue to be abused and raped by the one person they trusted enough to want to spend the next seven lifetimes with.

Copyright © 2007 Jishi Samuel