Right To Information Act [HQ]

Death penalty should be given to those killing for dowry: SC

The Supreme Court on 28 oct.2010 said that death sentence should be awarded in dowry death and bride burning cases as they fall under the "rarest of rarest" category while observing the Indian society has become totally sick and commercial.A bench of Justices Markandeya Katju and Gyan Sudha Mishra in an order said time has come to stamp out the evil of bride killing cases with an iron hand so that it acts as a deterrent."We see no reason to disagree with the judgement and order of the (Allahabad) High Court convicting the appellants.In fact, it was really a case under Section 302 IPC (murder) and death sentence should have been imposed in such a case, but since no charge under Section 302 IPC was levelled, we cannot do so. "Otherwise such cases of bride burning, in our opinion, fall in the category of rarest of rare cases, and hence deserve death sentence," the judges said."Although bride burning or bride hanging cases have become common in our country, in our opinion, the expression 'rarest of rare' as referred to in Bachan Singh vs State of Punjab(1980) does not mean that the act is uncommon, it means that the act is brutal and barbaric. Bride killing is certainly barbaric," the bench said.The apex court passed the order while upholding the life sentence imposed on Satyanarayan Tiwari and his mother for strangulating and setting ablaze the former's wife Geeta in pursuit of their demand for dowry in UP on November 3, 2000.

Though the Sessions Court had acquitted the mother and the son, the Allahabad High Court on an appeal from the State had reversed the acquittal and awarded life imprisonment to the duo under Section 304B(dowry death) which carried a maximum sentenced of life imprisonment, 498-A (harassment) and Section 4 of the Dowry Prohibition Act.Aggrieved, the convicts appealed in the apex court.However, the apex court took strong exception to the manner in which the victim was strangulated and burnt to death which, it said, revealed the growing commercialisation and scant respect for women in the country."The hallmark of a healthy society is the respect it shows to women. Indian society has become a sick society. This is evident from the large number of cases coming up in this court (and also in almost all courts in the country) in which young women are being killed by their husbands or by their in-laws by pouring kerosene on them and setting them on fire or by hanging/strangulating them."What is the level of civilisation of a society in which a large number of women are treated in this horrendeous and barbaric manner? What has our society become.

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Haider Ajaz

Distinction between Charge and Mortgage

Section 100 and 101 of the Transfer of Property Act deals with Charge. It arises when immovable property of one person is made a security for the repayment of money to another when it does not amount to a mortgage. A charge is very much similar to a simple mortgage.

Sections 58(a) of the TP Act deals with mortgage. It is a transfer of an interest in specific immovable property as security for the repayment of a debt.

The distinction between charge and mortgage is well explained in many decisions. One of such earlier decision on the point is reported in 1956 KLT SN 21 (C.No.51).

The main distinction between a charge and a mortgage is that in the case of a charge there is no transfer of interest in the property but only the creation of a right of payment out of the property while a mortgage amounts to a transfer of interest in the property. A charge cannot be enforced against the property in the possession of a person to whom it has been transferred for consideration and without notice of the charge while a mortgage can be enforced even against a transferee for consideration without notice of the mortgage.

Some other distinctions are as follows:

• Charge is by way of security for the payment of money which may or may not be a debt. Mortgage is by way of security for the payment of a debt.
• A charge is the result of act of parties or by operation of law while a mortgage is generally by act of parties.
• In case of a charge, it need not be registered. But in mortgage any sum beyond Rupees 100 is to be registered. There is also an exception in the case of mortgage by deposit of title deeds.
• There is no pecuniary liability in charge where there is such liability in mortgage.
• In charge there is no transfer of interest in property while in mortgage there is such transfer.
• In charge, purchase of property for value without notice can be raised as a defence. But such defence is not available in the case of a mortgage.
• A charge is a right in rem when a decree to that effect is obtained while mortgage is a right in rem.

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Haider Ajaz

India’s New “Domestic Violence Act” – A Study Report

Compiled by Rudolph D’Souza and Others

For centuries in India women were treated like goddesses – or devis. Even though there was sati (suttee), with widows voluntary taking to and immolating themselves on their late husband’s funeral pyre, as devout Hindus believe, or forced to do so, as opponents of sati believe, it was purely a religious custom, that had nothing to do with women rights¹. Man was the head of the family, but at home in fact he was his wife’s puppet, a situation described by the wry aside: “He is the BOSS of the House – he has his wife’s permission to say so!”

The worth of a civilization can be judged from the position that it gives to women. Of the several factors that justify the greatness of Hinduism's ancient culture, one of the greatest is the honored place ascribed to women. Manu, the great law-giver, said long ago, “Where women are honored there reside the gods.” According to ancient Hindu scriptures, no religious rite could be performed by a man perfectly without the active participation of his wife – his wife’s participation being essential to any religious rite. Married men could perform sacred rites on the occasion of various important festivals only when accompanied by their wives. Wives are thus befittingly called 'Ardhangani' (better half). They are given not only important but equal position with men (Source http://www.bu.edu/wcp/Papers/Huma/HumaSing.htm by Dr. Ms. Rekha Singh of M.D.D.M. College.

The Indian Domestic Violence Act

According to the Indian Domestic Violence Act:

Domestic violence can be defined as a pattern of behavior in any relationship that is used to gain or maintain power and control over a female partner.

Abuse can be physical, sexual, emotional, economic or psychological actions or threats of actions that frighten, intimidate, terrorize, manipulate, hurt, humiliate, blame, injure or wound the female partner.

Domestic violence can happen to anyone of any race, age, sexual orientation, religion or gender – except to males. It can happen among couples who are married, living together or who are dating. Domestic Violence affects people of all socio-economic backgrounds and education levels.

A woman may be in an emotionally abusive relationship if her male partner:

1.Calls her names, insults her or continually criticizes her,
2.Does not trust her and acts jealous or possessive,
3.Tries to isolate her from family or friends,
4.Monitors where she goes, who she calls and who she spends time with,
5.Does not want her to work,
6.Controls finances or refuses to share money,
7.Punishes her by withholding affection,
8.Expects her to ask permission,
9.Threatens to hurt her, her children, her family or her pets,
10.Humiliates her in any way.

A woman may be in a physically abusive relationship if her male partner has ever:

1.Damaged property when angry (thrown objects, punched walls, kicked doors, etc.).
2.Pushed, slapped, bitten, kicked or choked her.
3.Abandoned her in a dangerous or unfamiliar place.
4.Scared her by driving recklessly.
5.Used a weapon to threaten or hurt her.
6.Forced her to leave her home.
7.Trapped her in her home or kept her from leaving.
8.Prevented her from calling the police or seeking medical attention.
9.Hurt her children.
10.Used physical force in sexual situations.

And also... a woman may be in a sexually abusive relationship if her partner:

1.Views women as objects and believes in rigid gender roles.
2.Accuses her of cheating or is often jealous of her outside relationships.
3.Wants her to dress in a sexual way.
4.Insults her in sexual ways or calls her sexual names.
5.Has ever forced or manipulated her into to having sex or performing sexual acts.
6.Held her down during sex.
7.Demanded sex when she were sick, tired or after beating her
8.Hurt her with weapons or objects during sex.
9.Involved other people in sexual activities with her
10.Ignored her feelings regarding sex.

By contrast, the Indian Domestic Violence Act specifically and clearly exculpates women from being prosecuted as the principal accused of Domestic Violence, excepting mothers, sisters, etc. of the accused man being prosecuted as abettors etc., and also specifically provides that the prescribed reliefs, such as maintenance, restraining orders, can be obtained ONLY by a woman and NEVER against a woman!

These rules which are set out in the Indian Domestic Violence are totally biased, and work, not to protect the institution of marriage and families, but to break marriages and families, giving ample opportunities for misuse, with no remedial measures provided for.

Together with the so-called “Section 498 (A)” of the Indian Penal Code and the associated amendment to the Evidence Act, these legislations have resulted in widespread misuse and social malaise. Additionally, under these legislations, the indirect sufferers will be women in majority of the cases, as daughters-in-law file case against husbands, mothers-in-law and sisters-in-law.

Homes and relationships cannot be run by State terrorism and force. Money can’t make any one happy, otherwise, no one would have yearned for family and friends and children.

Women can not both obtain “relief” and also retain relationships by taking recourse to these legislations, a fact that should be fully understood by one and all. The relationship between men and women is by heart and voluntary, otherwise, it results in prostitution.

What this Act really mean...

According to these legislations, the following is a list of women’s rights:

1. The right to control and subjugate the male partner
2. The right to publicly humiliate and physically abuse the male partner and his entire family
3. The right to divest the male partner of all his money and property
4. The right to send the male partner and his entire family to jail on her whims and fancies
5. The right to force the male partner to be a slave to her family
6. The right to kick out the male partner from HIS house at her will
7. The right to commit adultery (and send the male partner to jail if he dares object)
8. The right to kill an unborn child regardless of the male’s partner’s wishes
9. The right to have all “rights” and no responsibilities

The Main reasons “Modern Women” file Police Complaints under these legislations:

1. She is possessive and suspicious
2. She is self-centered and feels the need to dominate the relationship and every aspect of decision-making
3. She is used to living beyond her means
4. She came from a middle class Family and married a man who was wealthier than herself
5. She has some political connections
6. She is a control freak
7. Her father is hen-pecked and her mother dominates her family
8. She listens to and acts in accordance with her parents’ wishes at all times
9. She lacks discretion in dealing with her married life
10. She wants to alienate her husband’s affection from his parents and siblings
11. She wishes her husband to commit the crime of abandoning his aged parents
12. She is hypersensitive
13. She opposes every word of her husband, his parents, siblings, etc.
14. She wishes to blackmail and intimidate her husband, his parents and siblings to fulfill her unreasonable demands
15. She does not wish to adjust to or with the husband’s family or take on any domestic responsibilities.
16. She is suffering from pre-existing mental problems

In Details........

Section 32 (2) says that under the sole testimony of the aggrieved person, the court may conclude that an offence has been committed by the accused.

This means with one word of women, it will empowered her to punish men at her will. This is very dangerous for innocent men. As it is in the Divorce, alimony, rape, and dowry laws are already in favour of women. This law will not allow men to escape from the clutchs of women who would lodge false complaint. All she has to do is, go to police station and shed some crocodile tears. thats all, and husband will be full time member of jail at no cost; SORRY tax payers cost.

Ch.IV, S.17 makes the “right of residence” a powerful tool in the women’s hands whether or not she has any title in the household.

An adulterous woman can abuse her husband or in-laws and threaten them of false domestic violence but she cannot be thrown out of the house as per the Act. This is open license to women to harass innocent men. She could even bring her lover to the house and the husband or in-laws can’t do anything or stop her. Even husband has no right if she has sex in front of her husband, may may file case for stoping her from enjoying, ist harassment for her.

(Ch.II, S.3) of the Domestic violence Act includes actual abuse or threat of abuse — physical, verbal, emotional or economic.

it means whatever husband do to his wife is wrong, but same if she do, thats ok, Even with hold sex, shout at him, slap, insult, Humiliate


Section 18 allows the magistrate to protect the woman from acts of violence or even “acts that are likely to take place” in the future and can prohibit the respondent from dispossessing the aggrieved person or in any other manner disturbing her possessions, entering the aggrieved person’s place of work or any other place that the abused woman frequents….

If women says her husband and in laws stoping her from Bringing her lover home, judge will order husband and his old parents not enter thier own home.


The Act also says that husbands can’t pressure wives to watch porn or to have sexual relationship.

Some Indian women says Kissing is PORN, so soon all indian men who watch movies, Watch these movies together in jail.


Ch.III, S4 of the Act says that the information regarding an act or acts of domestic violence does not necessarily have to be lodged by the aggrieved party but by “any person who has reason to believe that” such an act has been or is being committed. Which means that neighbours, social workers, relatives etc. can all take initiative on behalf of the victim

When husband Stop wifes lover entering his home, he can file complaint in behalf of his lover.

Preventing one’s wife from taking up a job or forcing her to leave job are also under the purview of the Act.

Only solution is to save Institute of Marriage and Family of india, we should ask all organisations not to appoint women at any cost.

Another flaw in the Act is inclusion of live-in partners or any sexual partner (Ch.I, S.2(a))

This clause give men to make use of this law, if a lover of man come home , his legally wedded wife cann`t do anything she cann`t kick her out. husbands now take advantage of this bill ? its law against women not in her favor

The Act will actually worsen the domestic problems leading to breakdown in marriages as women will be now encouraged to go to courts ,without giving any chance to settle thier differences The Act discourages women to rectify their mistake. The Act not only gives powers without taking any responsibilities to women but also takes away all the rights of men.

it is not only marriage breaker but also whole family spliter, women can file case against any male member of Family, its a chain reaction, one crack in a marriage can ruin husbands other brothers family too. its massive bomb waiting to Explode.

There is ample chance to misuse coz there is no clause of punishsment if misused, just like Dowry law.

Feminist want Domestic Violence not Domestic harmony, thats why there is no word of spouse instead man.

With the help of this law now women can stop Father of her children to meet them, this is total breakdown of Social structure of Indian Society it is best tool for black clad corrupt lawyers and Money minting machinary for police, women organisations and politicians.

If there are abusive men, then there are Abusive women too. Laws should be gender balanced not Gender Biased.

Real Statistics on Domestic violence:

One of the most pervasive myths of our society is that domestic violence is something men do to women. Solid scientific research reveals that domestic violence is something women do to men more frequently than men do to women.

While it is true that men account for most violence outside the home, women instigate most domestic violence and they injure men more frequently and more severely.

The Family Research Laboratory at the University of New Hampshire, under grants from the National Institute of Mental Health, recently finished the last of three national studies on domestic violence. The first two studies revealed results similar to the latest study. Anyone who would like a copy of it may order it from the University of New Hampshire (ask for Document V55). The data tape and documentation of the 1975 and 1985 studies are available from the Interuniversity Consortium For Political and Social Research at the University of Michingan.

Original data is also available on CD-ROM from Sociometrics, Inc. in Palo Alto, CA.

The average results in the 'severe assault' category are reported below:

* Wives report they have been severely assaulted by husband 22 per 1000

* Wives report they have severely assaulted husband 59 per 1000

* Husbands report they have been severely assaulted by wives 32 per 1000

* Husbands report they have severely assaulted wives 18 per 1000

* Husbands & wives both report wife has been assaulted 20 per 1000

* Husbands & wives both report husband has been assaulted 44 per 1000

There are dozens of other studies that reveal similar findings. For instance:

* Women are three times more likely than men to use weapons in domestic violence.

* Women initiate most incidents of domestic violence.

* Women commit most child abuse and elder abuse.

* Women hit their male children more frequently and more severely than they hit their female children.

* Women commit most child murders and 64% of their victims are male children.

* When women murder adults, the majority of their victims are men.

* Women commit 50% of spousal murders.

* Eighty-two per cent of all people have their first experience of violence at the hands of a woman.

Wives report they have been severely assaulted by husband 22 per 1000 (Vs 59%)

[Source: http://findarticles.com/p/articles/mi_m0JJC/is_3_22/ai_81835579 ]

Who is behind this Sabotage of Society?

Rajendra K.Gupta, “India-Force” Yahoo! D-List (http://groups.yahoo.com/group/India-Force )

What the dirty, overfed and corrupt politicians and misguided women in various forums and organizations are doing is causing widespread damage to India’s social fabric.
We have almost reached the point of no return. Men are being forced to remain in marriage - once entered - under threat of law. This is sickening. Instead of making divorce easy and simple and time bound these politicians enact more and more laws to intimidate people and fool women and men alike.
Once a relationship is broken it will result into divorce. There is no point in trying to save it and that too by force and threat of police arrest. There has been wholesale abuse of women's laws as much as 90% cases in case of 498A and other dowry laws.
But in fact I know of several women whose jewellery and other effects are in custody of brother-in-laws and ex-husbands and nothing is done by police or courts. They don't even bother to listen about it. The whole system in India is corrupt and fraudulent. These laws are merely for terrorizing and harassing and in order to provide opportunity to policemen and government employees to extort money.
Genuine cases are never taken up by police or courts. They invariably act on false cases.

Whenever special laws are enacted the procedure and definitions should be very clear and goals of law should be clear. These should have built-in safety and higher punishment for abuse of law and making false complaints. Policemen should also be prosecuted for false action. Unless this is done, Indian society is headed for severe crisis, unrest and breakages of homes and ultimately women will be the largest sufferers.

The situation is such that I would advice youth not to marry if they can avoid it. A new set up will have to be evolved in society till these corrupt and brainless people in power learn lessons and withdraw all foolish andmala fide laws enacted including reservations.

Just imagine - a boy marries a girl and marriage lasts for a few weeks but he has to provide her a home, money and maintenance for her whole life and also face charges against 498A and 406 and etc laws. He can't sell his house any more without consent of that woman. It is sheer ridiculous and contradictory to many other basic laws and principles of the Constitution. Would it be advisable to go for marriage in India anymore? Marrying is now a very risky and costly act.
In fact what happens in most urban disputes is the incompatibility and intolerance by the bride towards the groom’s family and the wife’s insistence on living separately. Relations sour and reach breaking point, which is when the whole act of vendetta and State Terrorism begins. Go to police file a complaint under Section 498(A) without any evidence, facts or prima facie reason. Now she will go to court lodging a complaint under the so-called D.V. Act. The DV act provisions are nothing but outright foolish, absurd, illogical and exist to perpetrate Sate Terrorism and blackmail only. How such law can be passed in any democratic society ?
It is time people stop marrying like in USA and many other western countries. There appears to be a sinister plot to finish Indian society and its family unit and thus India’s advantage.
People should write to the Ministry of Law, the President and to the Chief Justice of India (CJI) to withdraw these illegal legislations immediately and arrest the members of the “National Commission for Women” (NCW) for injuring the commonwealth.
This boneless and corrupt person working as prime minister should immediately resign. He should be ashamed for all his failures and for dividing society by intense reservations and bringing in several silly and idiotic laws never heard before.
People should not sit quiet. People have to rise when unreasonabelity reaches its peak. That is what Krishna preached and all great leaders in world preached. Don’t suffer in silence. Demand action against these boneless and corrupt politicians and take them on. They won't listen to the calls of logic and voices of sanity. They are totally blinded by lure of vote banks and making wealth. Today Indians are playing into the hands of western powers with full abandon. And the leftists though they call themselves leftist are actually supporting all these anti-social acts as they are also making huge amount of money

The Gender Divide

Source: http://gender-indian.blogspot.com/2006/12/time-to-wean-away-women-from-economic.html]

In India for centuries until the mid-twentieth centuries women were not granted permission to engage in economic activities. They were made to be an economic burden on some man – their fathers, brothers, husbands, sons, etc.

As a result, the dowry system was fashioned and observed by many communities on the principle that it was unfair to place a woman’s entire economic burden on the husband.

As the twentieth century progressed the hurdles towards women participating in the economic activity were gradually eliminated and by the 21st century the hurdles have been more or less removed in most sections of Indian society. Strictly speaking, now that women, by and large are economically independent, there is no longer any need for her to be dependent on a man.

However it is being seen that the Courts still treat women as "Abla Naari" needing financial assistance from some male, mostly her husband. Given the current social scenario, it now becomes imperative that women be weaned away from this dependency on income earned by the husband’s sweat. There is no longer any need to demand financial assistance from husbands to live their lives.

The Hindu Marriage Act (HMA) also clearly states that when a woman has access to independent income then she is not entitled to financial assistance in form of maintenance or alimony.

Unfortunately financially independent women are still misusing the maintenance laws (Section 125 of the Criminal Procedure Code) and Section 24 of HMA to demand financial settlements as “maintenance”.

Hidden Agendas Behind Proposed ‘Sexual Harassment Law’

Most of the contemporary pro-feminist legislations of India, dating from the 1980s, turn out to be totally one-sided, with unacceptable hidden motives and just plain wrong.

The new proposed legislation against ‘Sexual Harassment’ being pushed by the Ministry of Women and Child Development, National Commission for Women and other Femo-Fascist organizations continues with the Femo-Fascist agenda of destroying Democracy and the Principle of Equality before the law, by criminalizing all men and excluding them even from judicial powers.

Wrong 1: Constitution of the Committee:

The proposed legislation practically means:
The Committee at Parliament-level which will look into allegations of sexual harassment in Parliament will have 3 members, exclusively women, of which, one will be a professional women's rights activist from outside the parliament.

Similarly, at the district level committee in all courts, there will be 3 members, all exclusively women, one of then being a professional women's rights activist.

Chartered Accountants will have at every state or the union territory level, a similar committee, comprising have 3 members, exclusively women, of which, one will be a professional women's rights activist.

Similarly for the Bar Councils, Orphanages, Charitable Homes and also for Children’s Homes

Objection: Why are men being systematically excluded from these very powerful legal commity(s)?

Are we saying that all the men in parliament are not competent, but women members are competent?

That all male Additional District Magistrates (ADMs) and Civil & Sessions Court Judges are incompetent to be part of this Committee but women judges are competent?

That all the highly educated male Charted Accountants in India not even good enough to be part of this very powerful Judicial Committee(s)?
Reason for objection: I think there are 2 persons involved, one is male and one is female. Sometimes man may find it easy to express themselves to men, and women may find it easy to express themselves to women. We should have both man and women in the committee, equality for men, if not in laws at least minimum in this very powerful judges committee. The committee should have 50% men and 50% women. There should not be a bar that maximum only 3 persons can be in these committees; this should be left to the establishment if they want to have more members. The committee should be headed by two equal co-chairpersons, one a male the other a female.

Wrong 2: The proposed ‘Sexual Harassment’ legislation practically means:

For most companies with more then 50 persons, medical hospitals, prison, public establishments etc., the committee should be headed by a woman and should have more then 50% women members, with one woman member being a professional women's rights activist selected by the “Protection Officer” under the proposed ‘Sexual Harassment Act of that district.
Reason for objection: The apparent aim is not to balance the Committee by including a few men in the committee, but to keep more then 50% women and to top this, all powers are with the head of the Committee who must necessarily be a women. There is no provision that if not all members agree they can voice this in writing, and even if this is done, there is no way this will make a difference to the defendant’s case. All powers are vested with female head of the Committee. This way the men are there only for cosmetic reasons, just to make fun off by feminists (since Committee members will have no real powers), to make men feel inferior, to abuse the men committee members. This constitution of the committees is simply wrong and is unacceptable. It is evident that this is an underhand attempt to institutionalize Femo-Fascism in the Indian government. I suggest that the Committees should be constituted of an equal number of men and women, and have two equal co-chairpersons, one a male the other a female.

Wrong 3: Under Section 19 of the proposed legislations, providing funds to the women’s rights activists is not made clear, while travel expenses is mentioned, other expenses like Dearness Allowances, etc, are deliberately not made clear. To breed more young feminists, press has to go to them for news; all these women rights activists are again given powers to employ more persons.

TRUE lies :

News Agencies( http://www.msmagazine.com/news/uswirestory.asp?ID=9970) have refered to http://www.unfpa.org [UNFPA] as the source of these statistics, “United Nations Population Fund (UNFPA) found that an astonishing 70 percent of women who are married are beaten and sexually abused.”

How can two different organizations of UN (ie. UNDP and UNFPA) take on the same research and produce the same results by wasting funds?

We would like to request the Indian blogger community to check if they can get the source of the these statistics.

In the meantime, David R. Usher of MensNewsDaily, world’s most [ http://mensnewsdaily.com/2006/11/12/domestic-violence-rumor-mill-runs-the-united-nations ] famous Men’s Rights Blog. He also could not confirm the statistics and accused UN of manufacturing lies.

Then, we found that the http://www.unfpa.org [website of UNFPA]

has a Histogram, which shows percentage of ever-married Indian women between age 15 to 49 ever beaten* by a spouse of partner in 2005. The histogram shows the percentage as just 19%http://www.unfpa.org/swp/2005/presskit/factsheets/facts_vaw.htm [unfpa article]

(*In most surveys includes having been hit, slapped, kicked and physically hurt.)

So, what is the percentage of Indian women getting physically abused in a year by their so called wife-beater husbands?

That is 19/(49-15) = 0.56%.

Lets compare 0.56% women between age 15-49 facing domestic violence and the figure of 70% women facing domestic violence as reported in Media in last 20 days. Feminist hypocrisy is out in open.

On A Lighter Note

A good way to find the truth in the legislations drawn up by the Ministry of "women and child development" and NCW feminists, is to start reading near the bottom. They invariably put the main objectionable point near the end, then put so much confusion at top and middle by confusing use of word, that maybe Parliament’s members, while deciding whether to pass the law or not, will not read with full concentration until the end in details. So you know that as expected, the constitution of the Additional District Magistrates and Civil & Sessions Judges Committees, and the Parliament Committee, etc., are given at the end of the proposed legislation. Cheers.

Money and employment for Feminists

Though simple readings will not tell you, but a thorough logical examination of the text of the proposed legislation will reveal that this law is intended to create employment and money for feminists. See the draft of the proposed legislation at http://wcd.nic.in/draftsexharrsement.htm

Noted quote:

What do you say about the Prevention of Domestic Violence Act that has been passed by Parliament recently?

The unity of family is already under threat in our country. This Act has been given another weapon in the hands of women. Before bringing any law, we need to educate people about its usage. George Washington was presented an axe by his father on his birthday in his childhood. Since he did not have the knowledge of using it, he destroyed the whole garden. The misuse of this Act will take women away from their family and the society. There are forces in the country who are jealous of our strong family system. Now they have started entrapping women. I am against crime against women, but I doubt whether the Act would be used to protect the family." [Source: http://www.organiser.org/dynamic/modules.php?name=Content&pa=showpage&pid=169&page=12 ]

Recent Developments:

1) Mangalore: Bus front entrance reserved for women [Source: http://www.mangalorean.com/news.php?newstype=local&newsid=38630]

2) Delhi schools bans male teachers [Source: http://news.sulekha.com/nlink.aspx?cid=340673]

Footnotes:

1. Sati or Suttee was practiced only by upper class Hindus, and it was never a universal custom. Additionally, historians believe that the practice was imported from Central Asia during early mediaeval times, and it has no sanction in the Hindu scriptures.

Marital Rape in India

Violence against women within the family has become a contemporary issue. With the mounting concerns of researchers and women activists, a plethora of literature is coming out on the nature, extent and reminiscent strategies of violence within public as well as private domain. The physical and sexual abuse of women in public domain and children has become widely recognized. Laws have been changed, shelters and treatment programs have been launched, and documentaries/movies have been made on the issue, yet sexual relations within married couples are less discussed and scantily researched issues in India. There is a curious silence surrounding sexual violence towards wives as wife, family and children are considered as private issues and moreover notion of family rest on the peace and security of women. Though widespread, sexual violence or marital rape is still regarded as a tabooed issue.

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 sort of shaken the ground basis of the entire union of a man and a woman and this idea of the “sacrosanct” institution of marriage is dished out by the mainstream Indian cinema is a myth and is contrary to women’s perceptions of reality.

Marriage now, is just not limited to being with the man you love, respect and want to spend your entire life with 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 today’s world or perhaps, women have only started speaking about it now.

Though marital rape is the most common and repugnant form of masochism in Indian society, it is hidden behind the iron curtain of marriage. Social practices and legal codes in India mutually enforce the denial of women’s sexual agency and bodily integrity, which lie at the heart of women’s human rights. Rape is rape. Be it stranger rape, date rape or marital rape. The law does not treat marital rape as a crime. Even if it does, the issue of penalty remains lost in a cloud of legal uncertainty. The legal system must be forced to accept rape within marriage as a crime. Further, women themselves must break free of societal shackles and fight for justice. They must refuse to comply with the standards applied to them as the weaker sex.

2.0 Marital Rape

The term “Marital Rape” is contentious and creates confusion for rape is widely regarded as a sexual transgression, and marriage is perceived as socially sanctioned sex. Generally women themselves do not recognize sexual assaults by a husband as rape (compared with sexual assaults by strangers or acquaintances) and so are less likely to report it. Further there are many stereotypes about women and sex such as women enjoy forced sex, women say “no” when they really mean “yes,” it’s a wife’s duty to have sex which continue to be reinforced in Indian culture through both mainstream and pornographic media misleading men into believing that they should ignore a woman’s protests, but also mislead women into believing that they themselves must have “sent the wrong signals,” blaming themselves for ¹unwanted sexual encounters, or believing that they are “bad wives” for not enjoying sex against their will. Hence “rape in marriage” is still a hidden phenomenon and considered as non-issue in India.

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.

Having sex with a person at one time does not “imply” consent to any future sexual acts. According to rape statutes, consent must be a cooperative act of free will. Sexual acts include but are not limited to penile-vaginal intercourse, the insertion of genitals into the mouth or anus, or the insertion of objects into the vagina or anus. Finkelhor and Yllo (1985) found it useful to distinguish between different forms of coercion which occurs in husband-wife relationship and facilitates marital rape:-

Social coercion is the pressure women feel as a result of cultural expectations or social conventions. Social coercion regarding marital sex is institutionalized in our culture and internalized in individuals. While such coercion can be degrading and detrimental, especially when accompanied by other forms of male entitlement and control, it does not fall within a useful definition of rape.

Interpersonal coercion occurs when a woman has sex with her husband in the face of threats that are not violent in nature. Husbands who threaten to withhold money or have an affair or who become nasty toward the children are guilty of interpersonal coercion. The coercive nature of such threats is especially salient in a marriage where a woman’s dependency and powerlessness undercut her bargaining position. Nevertheless, when such threats are not associated with any physical coercion, the sex that follows cannot regarded as rape.

Threatened or actual physical coercion, in contrast, is at the core of rape. Physical threats can range from explicit threats to kill a woman if she doesn’t comply, with the implied threat that she will get hurt if she doesn’t cooperate. The implied threats are especially potent in relationships where a husband has battered his partner in the past. The actual use of physical force has a wide range from holding a woman down with greater size and strength to inflicting extensive injuries.

Finkelhor and Yllo (1985) further suggest limiting the definition of marital rape to the use or threatened use of physical force without the consent of the woman though they consider other two forms of coercion important in politicizing the issue.

2.1 Trauma of Marital Rape

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.

The UN Population Fund states that more than 2/3rds of married women in India, aged between 15 to 49 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.

Thus, Marital rape is a unique problem that encompasses both physical violence and the psychological trauma of being raped by someone who has taken marriage vows to love and honor his or her spouse. Thus a comprehensive framework for marital rape must include aspects of the emotional and physical cruelty, as well as the exposure of family privacy, that often accompanies domestic violence.

2.2 Physical and psychological effects of marital rape

Despite the historical myth that rape by one’s partner is a relatively insignificant event causing little trauma, research indicates that marital rape often has severe and long-lasting consequences for women. The physical effects of marital rape may include injuries to private organs, lacerations, soreness, bruising, torn muscles, fatigue and vomiting. Women who have been battered and raped by their husbands may suffer other physical consequences including broken bones, black eyes, bloody noses, and knife wounds that occur during the sexual violence. Specific gynaecological consequences of marital rape include miscarriages, stillbirths, bladder infections, infertility and the potential contraction of sexually transmitted diseases including HIV.

Women who are raped by their partners are likely to suffer severe psychological consequences as well. Some of the short-term effects of marital rape include anxiety, shock, intense fear, depression, suicidal ideation, and post-traumatic stress. Long-term effects often include disordered eating, sleep problems, depression, problems in establishing trusting relationships, and increased negative feelings about themselves. Psychological effects are likely to be long-lasting. Some marital rape survivors report flashbacks, sexual dysfunction, and emotional pain for years after the violence.

2.3 Types of Marital Rape

It appears that Sexual violence is most likely to occur along with all other forms of violence like physical violence, emotional violence and economic violence. This has led some researchers to argue that marital rape is “just one extension of domestic violence” (Johnson & Sigler, 1997, p.22). Viewing rape in marriage as a form of domestic violence is logical given that researchers have found that the majority of women who are raped by their partners are also battered. In fact, Violence can not be compartmentalized. It is a continuum. Finkelhor & Yllo (1985) have tried to categorize the sexual assault into three major following forms:-

Battering rape: In “battering rapes”, women experience both physical and sexual violence in the relationship and they experience this violence in various ways. Some are battered during the sexual violence, or the rape may follow a physically violent episode where the husband wants tomake up and coerces his wife to have sex against her will. The majority of marital rape victims fall under this category.

Force-only rape: In what is called “force-only” rape, husbands use only the amount of force necessary to coerce their wives; battering may not be characteristic of these relationships. The assaults are typically after the woman has refused sexual intercourse.

Obsessive rape: Other women experience what has been labelled “sadistic” or “obsessive” rape; these assaults involve torture and/or “perverse” sexual acts and are often physically violent.

3.0 Justifications

The acceptance and development of marital rape exemptions are rooted in five theories: the theory of “implied consent,” the “unity”, “women as marital property” theories, the “narrow constructionist” theory, “marital privacy” and “marital reconstruction”.

The theory of implied consent originated with a seventeenth century statement by Sir Matthew Halethat a “husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.” A woman, upon entering marriage, impliedly and irrevocably consents to sex on demand with her husband, at any time and under any circumstances.

Blackstone best articulated the unity theory when he wrote that “by marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into [her] husband.” But now the Courts have changed its view with Trammel v. United States, which asserts that “nowhere in . . . modern society . . . is a woman regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being.”

In the narrow constructionist theory, the term “unlawful,” as it is used in rape statutes, means “not authorized by law.” Because marriage sanctions, or authorizes, sexual relations between husband and wife, all carnal knowledge between husband and wife is lawful, and there are no sexual relations within a marriage that are unauthorized or unlawful. Thus, no sexual relations within a marriage fall within this definition of rape.

Marital privacy is one of the foremost modern day justifications for marital rape exemptions. Proponents of the marital privacy rationale suggest that the right to privacy within one’s marriage is so fundamental that the public, and hence the legal system, should be precluded from defining or judging the activities therein. The New York court of appeals in People v. Liberta rejected the marital privacy argument and stated clearly that the right recognized in Griswold v. Connecticutapplies only to consensual acts, not to violent sexual assaults.

Reconciliation theorists maintain that this resolution process, as opposed to one which allows “access to the criminal justice system for every type of marital dispute,” fosters greater mutual respect between the parties and eases their ultimate reconciliation. Inherent in this theory is the idea that if a victim of spousal rape is capable of bringing, and in fact does bring, criminal charges against her spouse, then the law will have fostered marital discord and prevented reconciliation.

There is a perception that rape by a known individual, particularly an individual with whom the victim has had past voluntary sexual intercourse, is less severe than rape by an unknown individual. This perception supports both broad marital rape exemptions and the treatment of marital rape as a lesser sexual offense.

Contrary to this “less harmful than” theory, victims of spousal rape suffer greater harm, both emotionally and physically, than victims of stranger rape.

3.1 Arguments against criminalization of Marital Rape

Besides the above mentioned theories which justify marital rape there are also some frivolous arguments which justify this heinous offence. They are as followed:-

The following are some of the common arguments given against the idea and proposal of criminalizing marital rape as an offence:

• — There is no need to give legislative attention to marital rape, as it is quite uncommon.
• — Due to the near impossibility of proving marital rape, its criminalization would only serve as an increased burden to the already overburdened legal system.
• — Dissatisfied, angry, vengeful wives might charge their innocent husbands with the offence of marital rape.
• — There is an implied consent to have sexual intercourse when a woman marries a man.
• — Marital rape laws would destroy many marriages by preventing any possible reconciliation.

3.2 Rebuttal of Arguments against criminalization of Marital Rape

A perusal of these arguments would make it quite evident that these are mere fanciful, lame excuses of a male-dominated society that lack any sort of legal substance or moral force. A rebuttal of the abovementioned arguments is not very difficult.

Marital rape is a common but under-reported crime. A study conducted by the Joint Women Programme, an NGO, found that one out of seven married women had been raped by their husband at least once. They frequently do not report these rapes because the law does not support them.

As to the second argument, that marital rapes are difficult to prove, it may be showed that criminalization of marital rape, serves to recognize rape in marriage as a criminal offence and would have a deterrent effect on prospective rapist husbands. The mere fact that marital rape would be very difficult to prove is no reason for not recognizing it as a crime.

As regards the third argument of women foisting malicious charges, it may be noted that if proving a claim of rape in marriage is hard, proving a fabricated claim will be even more difficult. Because of the associated stigma of rape trials, it is unlikely that women will elect to undergo such an experience out of sheer spite. Besides, the criminal justice system provides inherent safeguards such as the requirement of proof beyond any reasonable doubt. This is no justification to say that the victims should be denied protection simply because someone might be at risk of a fabricated case.

As far as the fourth argument is concerned, it is true that a wife impliedly consents to sexual intercourse with her husband after marriage, but the expression of love through sexual intimacy is not the same as forced sex. On the other hand, it strikes at the very foundation of matrimony irrespective of whether the marriage is a sacrament or a contract. By no stretch of imagination can it be said that a person consents to harm or violence by marriage, and neither does the law permit any person to give such consent.

Finally, a marriage in which a husband rapes his wife is already destroyed. Attempt to hold together marriages may be one of the objectives of matrimonial laws. But it cannot override the fundamental objective of law in general and that of criminal law in particular, which is to protect and preserve the bodily integrity of a human being. Thus, withholding justice and denying equal protection for preserving marriages, at best, can be an improper goal of law. The law should not encourage forced cohabitation and should not protect a raping husband.

4.0 Legal Position on Marital Rape

The marital rape exemption can be traced to statements by Sir Mathew Hale, Chief Justice in England, during the 1600s. He wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.”

This established the notion that once married, a women does not have the right to refuse sex with her husband. This allows husbands rights of sexual access over their wives in direct contravention of the principles of human rights and provides husbands with a “licence to rape” their wives.

Not surprisingly, thus, married women were never the subject of rape laws. Laws bestowed an absolute immunity on the husband in respect of his wife, solely on the basis of the marital relation. The revolution started with women activists in America raising their voices in the 1970s for elimination of marital rape exemption clause and extension of guarantee of equal protection to women.

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 ½ among clinical samples of battered women. Sexual assault by one’s spouse accounts for approximately 25% of rapes committed.

4.1 Position in India

There is no slightest of doubt that we live in patriarchal society. This society vehemently denies social and economic autonomy of women and its appropriation of women as male sexual property are only too willingly protected by the state and its laws.

Though we have advanced in every possible field, marital rape is not considered as an offence in India. Despite amendments, law commissions and new legislations, one of the most humiliating and debilitating acts is not an offence in India. A look at the options a woman has to protect herself in a marriage, tells us that the legislations have been either non-existent or obscure and everything has just depended on the interpretation by Courts.

Section 375, the provision of rape in the Indian Penal Code (IPC), has echoing very archaic sentiments, mentioned as its exception clause- “Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape.” Section 376 of IPC provides punishment for rape. According to the section, the rapist should be punished with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and 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.

This section in dealing with sexual assault, in a very narrow purview lays down that, an offence of rape within marital bonds stands only if the wife be less than 12 years of age, if she be between 12 to 16 years, an offence is committed, however, less serious, attracting milder punishment. Once, the age crosses 16, there is no legal protection accorded to the wife, in direct contravention of human rights regulations.

How can the same law provide for the legal age of consent for marriage to be 18 while protecting form sexual abuse, only those up to the age of 16? Beyond the age of 16, there is no remedy the woman has.

The wife’s role has traditionally been understood as submissive, docile and that of a homemaker. Sex has been treated as obligatory in a marriage and also taboo. Atleast the discussion openly of it, hence, the awareness remains dismal. Economic independence, a dream for many Indian women still is an undeniably important factor for being heard and respected. With the women being fed the bitter medicine of being “good wives”, to quietly serve and not wash dirty linen in public, even counseling remains inaccessible.

Legislators use results of research studies as an excuse against making marital rape an offence, which indicates that many survivors of marital rape, report flash back, sexual dysfunction, emotional pain, even years out of the violence and worse, they sometimes continue living with the abuser. For these reasons, even the latest report of the Law Commission has preferred to adhere to its earlier opinion of non-recognition of “rape within the bonds of marriage” as such a provision may amount top excessive interference wit the marital relationship.

A marriage is a bond of trust and that of affection. A husband exercising sexual superiority, by getting it on demand and through any means possible, is not part of the institution. Surprisingly, this is not, as yet, in any law book in India.

The very definition of rape (section 375 of IPC) demands change. The narrow definition has been criticized by Indian and international women’s and children organizations, who insist that including oral sex, sodomy and penetration by foreign objects within the meaning of rape would not have been inconsistent with nay constitutional provisions, natural justice or equity. Even international law now says that rape may be accepted a s the “sexual penetration, not just penal penetration, but also threatening, forceful, coercive use of force against the victim, or the penetration by any object, however slight.” Article 2 of the Declaration of the Elimination of Violence against Women includes marital rape explicitly in the definition of violence against women. Emphasis on these provisions is not meant to tantalize, but to give the victim and not the criminal, the benefit of doubt.

The importance of consent for every individual decision cannot be over emphasized. A woman can protect her right to life and liberty, but not her body, within her marriage, which is just ironical. Women so far have had recourse only to section 498-A of the IPC, dealing with cruelty, to protect themselves against “perverse sexual conduct by the husband”. But, where is the standard of measure or interpretation for the courts, of ‘perversion’ or ‘unnatural’, the definitions within intimate spousal relations? Is excessive demand for sex perverse? Isn’t consent a sine qua non? Is marriage a license to rape? There is no answer, because the judiciary and the legislature have been silent.

4.1.1 42^nd Law Commission Report

Though the Law Commission in its 42nd Report advocated the inclusion of sexual intercourse by a man with his minor wife as an offence it was seen as a ray of hope. But, the Joint Committee that reviewed the proposal dismissed the recommendation. The Committee argued that a husband could not be found guilty of raping his wife whatever be her age. When a man marries a woman, sex is also a part of the package.

Many women’s organizations and the National Commission for Women have been demanding the deletion of the exception clause in Section 375 of the Indian Penal Code which states that “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”. However, the Task Force on Women and Children set up by the Woman and Child Department of the Government of India took the view that there should be wider debate on this issue. The mandate of the Task Force was to review all existing legislation and schemes pertaining to women. Of the four recommendations made by the Task Force vis-à-vis rape under the Indian Penal Code, the most significant pertains to the definition of rape. It took the position that the definition of rape ought to be broadened to include all forms of sexual abuse. As per the recommendation, the Law Commission’s proposed definition of “sexual assault” could be adopted in place of the existing definition of rape in Section 375 IPC as “it is wide, comprehensive and acceptable”. However, like the Law Commission, the Task Force also stopped short of recommending the inclusion of marital rape in the new definition.

4.1.2 172nd Law Commission report

Even the 172nd Law Commission report which was passed in March 2000 had made the following recommendations for substantial change in the law with regard to rape.

1. ‘Rape’ should be replaced by the term ‘sexual assault’.
2. ‘Sexual intercourse as contained in section 375 of IPC should include all forms of penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal.
3. In the light of Sakshi v. Union of India and Others [2004 (5) SCC 518], ‘sexual assault on any part of the body should be construed as rape.
4. Rape laws should be made gender neutral as custodial rape of young boys has been neglected by law.
5. A new offence, namely section 376E with the title ‘unlawful sexual conduct’ should be created.
6. Section 509 of the IPC was also sought to be amended, providing higher punishment where the offence set out in the said section is committed with sexual intent.
7. Marital rape: explanation (2) of section 375 of IPC should be deleted. Forced sexual intercourse by a husband with his wife should be treated equally as an offence just as any physical violence by a husband against the wife is treated as an offence. On the same reasoning, section 376 A was to be deleted.
8. Under the Indian Evidence Act (IEA), when alleged that a victim consented to the sexual act and it is denied, the court shall presume it to be so.

Notwithstanding the 172nd Report of the Law Commission of India submitted over nine years ago to the Government of India urging that Parliament should replace the present definition of rape under Section 376 IPC with a broader definition of sexual assault, which is both age and gender neutral, nothing has been done till date.

4.1.3 Recent Proposed reforms

This year as the world celebrated International Women’s Day in March, the government had proposed bill to protect women from all possible tormentors, including their husbands, by introducing “marital rape” as a separate provision under the proposed new law against rape and sexual assault.

There is no law at present to identify marital rape and penalise husbands for forced sex with their wives but the Domestic Violence Act that covers sexual abuse as part of violence on women. However, soon, husbands may find themselves behind bars if their wives lodge a complaint. The proposed penalty for marital rape will be three years’ imprisonment with fine.

The department of legal affairs has drafted the Criminal Law (Amendment) Bill based on recommendations of the women and child development ministry (WCD) and the National Commission for Women (NCW) to amend certain sections of the Indian Penal Code (IPC), the Code of Criminal procedure (CrPC), 1973; and the Indian Evidence Act, 1872, to recognise new categories of sexual assault besides redefining rape by including sexual assault in any form in its definition.

“The definition of rape needs to be expanded to take into account forms of sexual assaults not covered in the existing definition under the IPC… the proposed bill recognises marital rape as an offence and also incorporates a specific provision on sexual assault by a relative or a person in position of trust or authority or in a position of social, economic or political dominance,” said justice Geeta Mittal of Delhi high court.

While women groups say that marital rape is a worldwide phenomenon and almost 50% of women face forced sex by their husbands, men’s organisations said the changes in law would essentially damage the fabric of a family system.

the proposed new law, besides terming sexual relationship of a man with a wife under the age of 18 as rape, also specifies under section 376 (1) that if a man commits sexual assault even on his wife, who is above 18 years of age, shall be punished with imprisonment which may extend to three years and shall be liable for a fine.

5.0 Lacunae in Indian laws

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. The whole legal system relating to rape is in a mess, replete with paradoxes. What is worse, women are not even aware that they don’t have to meekly give in to their husband’s demands.

The major legal lacunae that come in the way of empowering women against marital rape are:

• — The judicial interpretation has expanded the scope of Article 21 of the Constitution of India by leaps and bounds and “right to live with human dignity” is within the ambit of this article. Marital rape clearly violates the right to live with dignity of a woman and to that effect, it is submitted, that the exception provided under Section 375 of the Indian Penal Code, 1860 is violative of Article 21 of the Constitution.
• — Article 14 of the Constitution guarantees the fundamental right that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. Article 14 therefore protects a person from State discrimination. But the exception under Section 375 of the Indian Penal Code, 1860 discriminates with a wife when it comes to protection from rape. Thus, it is submitted, that to this effect, exception provided under Section 375 of the Indian Penal Code, 1860 is not a reasonable classification, and thus, violates the protection guaranteed under Article 14 of the Constitution.
• — Though protection of the dignity of women is a fundamental duty under the Constitution,casting a duty upon every citizen “to renounce practices derogatory to the dignity of a woman”; it seems that domestic violence and marital rape do not come under the definition of dignity.
• — The “United Nations Convention on the Elimination of All Forms of Discrimination against Women” (CEDAW), of which India is a signatory, has viewed that this sort of discrimination against women violates the principles of equality of rights and respect for human dignity. Further, the Commission on Human Rights, at its fifty-first session, in its Resolution No. 1995/85 of 8-3-1995 entitled “The elimination of violence against women” recommended that marital rape should be criminalized.
• — A husband cannot be prosecuted for raping his wife because consent to matrimony presupposes consent to sexual intercourse. This implies that having sex anytime, anywhere and of any sort is an implied term of the contract of marriage, and the wife could not breach that term of the contract.
• — The law prevents a girl below 18 years from marrying, but on the other hand, it legalizes non-consensual sexual intercourse with a wife who is just 15 years of age.
• — The Indian Penal Code, 1860 states that it is rape if the girl is not the wife of the man involved and is below 16, even if she consents. But if she is a wife, not below 15 and does not consent, it is not rape.
• — Another paradox is that according to the Indian Penal Code, 1860, it is rape if there is a non-consensual intercourse with a wife who is aged between 12 and 15 years. However, the punishment may either be a fine or an imprisonment for a maximum term of 2 years or both,which is quite less in comparison to the punishment provided for rape outside the marriage.
• — Though the advocates of women’s rights secured a 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.
• — Section 122 of the Indian Evidence Act prevents communication during marriage from being disclosed in court except when one married partner is being persecuted for n offence against the other. Since, marital rape is not an offence, the evidence is inadmissible, although relevant, unless it is a prosecution for battery, or some related physical or mental abuse under the provision of cruelty. Setting out to prove the offence of marital rape in court, combining the provisions of the DVA and IPC will be a nearly impossible task.

The trouble is, it has been accepted that a marital relationship is practically sacrosanct. Rather than, making the wife worship the husband’s every whim, especially sexual, it is supposed to thrive n mutual respect and trust. It is much more traumatic being a victim of rape by someone known, a family member, and worse to have to cohabit with him. How can the law ignore such a huge violation of a fundamental right of freedom of any married woman, the right to her body, to protect her from any abuse?

6.0 Suggestions for reform

In light of the above discussion following suggestions are made:

• —The most serious problem in criminalizing marital rape would be that it presupposes that the family structure is disturbed. India is said to have a social order characterised by a strong familial ties and a low divorce rate. Hence, criminalisation of family problems would only result in the complete breakdown of a home. Indian culture is vastly different from Western society where marriage is a contractual and temporary phenomenon. Considering the sensitive- nature of the problem these types of offences could be dealt with by the family courts.
• — 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.

Conclusion

Women continue to cry in their hearts and pray for a better married life where they have a say, where they both are happy. But the sad part is even today marriage is not about ‘them’ and so a woman is denied rights, is caged, can scream but shouldn’t be heard, can cry but shouldn’t be seen, is raped and shouldn’t be a victim.

Ironical as it is, but something such as marital rape should be acknowledged as no less a crime. Just because a woman leaves her own house to live in with her husband doesn’t mean she leaves behind her dignity, her right to humanity and her emotions.

It should be accepted by one and all that institution of 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 form 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.

If only struggle for gender justice is developed, the movement will change public consciousness, sensitize individuals to the issues that don’t just confront woman but society at large.

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Kriti Madan

Haider Ajaz