Marriage in India is considered to be a sacred practice which further enables both parties to subscribe to be part of a sexual relationship with the view to procreate. The institution of marriage is considered to be sacred in nature and in most cases, Indian women are expected to adhere and conform to whatever her husband dictates and deems fit because of the societal conditioning dictated to women. The traditional roles that both genders play are based on the cultural, societal and physiological construct wherein women are limited to a domestic life and men in the area of public life.
MARITAL RAPE
A marriage is considered to be a sacrament and once a woman is a party to an institution of marriage it is considered as an alleged express consent of the woman to subject her husband to a prerogative to have forceful sexual intercourse with her without seeking her absolute consent and agreement to the said act. It deems marriage to be a trump card for the man to exercise dominance over a woman’s bodily integrity. The exercise of marital rape is not solely a savage act of a man to fulfil his sexual desires but is accompanied with gravely impacting the emotional and mental wellbeing of a woman. As the Hon’ble Karnataka High Court held in State of Karnataka v/s Krishnappa (1993)[1] that sexual violence is grave harm inflicted on the dignity and honour of the victim and it creates immense psychological and physical damage to the victim. In most cases, women stand unaware that they are being emotionally and physically abused because of the societal and cultural norms heavily coming into play in this regard which dictates that a woman needs to submit herself at the whims and fancies of her husband at any place and time and if she disregards this she is considered to be a deviant. In many cases the woman does not consider forceful sex as abuse and also refrains from disclosing the details of the sexual act to her maternal family members or her lawyers considering it as a matter of shame. In Nimeshbhai Bharatbhai Desai v/s State of Gujarat, 2018, SCC Online, Guj, 732. The facts of the case are as follows, a woman was subjected to forceful oral and anal intercourse by her husband on multiple occasions. As stated by the woman that her husband would often engage in sweet talks with her in order to have unnatural sex with her. Such behaviour exhibited by the husband also conveys that he would emotionally abuse her in order to fulfil his sexual desires. Further, the woman has stated that she did not inform her maternal family members about the sexual violence for the sole reason that she was extremely concerned about her family’s goodwill prevalent in the society and hence she faced the brunt of her husband’s violence. As enumerated above it is evident how societal norms compel women to shove the violence she is undergoing under the carpet. The Hon’ble Gujarat High Court pronounced, “A wife is not a chattel and a husband having sexual intercourse with his wife is not merely using a property, he is fulfilling a marital duty with a fellow human being with dignity equal to that he accords himself. He cannot be permitted to violate this dignity by coercing his wife to engage in a sexual act without her full and free consent.”[2]
Gradually, the violent acts instituted by the husband manifest into other domains of the woman’s life. To illustrate, the man would confine the woman to the household imposing a restrain on the woman to be financially independent or from maintaining her finances, emotionally abusing her wherein she begins to doubt her own sanity which sabotages her self-esteem by constantly belittling by passing remarks on her body, social status before marriage, her natal family members and her educational qualifications. Violence is not solely physically assaulting a woman. It has a wider interpretation. Violence includes physical, mental, verbal, sexual and economic abuse.
THE RATIONALE BEHIND THE BARBARIC ACT
The patriarchal idea of men being superior and a woman being his subordinate is also promoted and advocated by various religions. Being ardent followers and vesting beliefs in radical religious philosophies also instil deep patriarchal values in men, wherein fine sense and logic is thrown out of the window and the radical religious views are considered and implemented. Such social conditioning acts as a catalyst to boost patriarchy which in turn nurtures the violation of a woman’s integrity and position. One would tend to believe the religious clerics and deem it final. The constant conditioning of the mind with such values shall promote transition in the young mind and he shall deem the religious views as the ultimate. The psyche or the motive behind a man performing such gruesome sexual assault on his wife lies in the presumption that he is mightier to her and can exercise his dominance over her in every regard which constitutes to the element of patriarchy. The performance of the brutal acts stems from the thought process that he is superior and can objectify her. As enumerated above, a man would dominate her in every domain be it her finances, her way of bringing up her children, lifestyle, choice of profession and so on and so forth.
In most cases, brutal sexual assault is also accompanied by forcing the woman to watch violent porn and asking her to imitate the acts performed in the video. The woman is at an extremely vulnerable stage wherein if she refuses to conform to her husband’s acts/words she would also be brutally beaten during that time. The act of imposing supremacy during the act is accompanied by performing unnatural sex like sodomy or engaging in forceful oral penetration with brute force which is not solely a savage act but also brutally sabotages a woman’s self-esteem and encroaches upon her body autonomy, integrity and personal choice.
The violence is not solely limited to men raping women in their bedrooms. The violence is exerted in other areas of her life as well. If a man can be violent in one way, there is a high probability that he has been abusing her in other ways too. In most cases women will not even realise that she is being abused. A man would tend to hijack her aspiration to be economically independent and ask her to stay indoors so that he can have the upper hand in the marriage and she keeps reconsidering if she ever decides to leave the violent marriage. Further, he would verbally or emotionally abuse her and her maternal family members for dowry by using extremely filthy language accompanied by brutal physical assaults. Abuse is meted out to her from every area and if there are any children out of the wedlock it adds more to her misery. Women constantly keep reconsidering their decision of walking out of the violent marriage because of lack of support from her natal family members and also due to the financial constraints. The entire idea of protecting or saving the institution of marriage compels the woman to keep going back to her husband who brutally violates her. No matter how many legal reforms come into play the way societal norms keep coming down on women makes the idea of curbing violence against women a farfetched execution. A study revealed that 32 % of married women faced grave physical violence by their husband and 10 % were inflicted with grave domestic violence such as burning and 12 % of the women faced wounds on their bodies and broken skull and 14 % faced grave emotional and mental distress (Ministry of Health and Family Survey 2005 – 06) even while we have such shocking data on record no strong implementation of the law is exercised but the sole escape is to provide counselling either by visiting marriage counsellors or when the matter proceeds to the court and is at the counselling stage. The counsel rendered to the woman is to reconcile in order to save the institution of marriage even if her husband is violent and brutally abuses her in every form. The entire idea of making the aggrieved woman to sit across with the perpetrator who is her husband coupled with resolving their marital woes is flawed and needs serious reflection.
SECTION 9 OF THE HINDU MARRIAGE ACT, 1955 AND SECTION 22 OF THE SPECIAL MARRIAGE ACT – RESTITUTION OF CONJUGAL RIGHTS
The provision of restitution of conjugal rights in law is wherein one party to the marriage files a petition in the court pleading before the court to direct the other party to resume marital relations in the matrimonial abode. The term “conjugal rights” is interpreted as parties to cohabit and maintain sexual relations.
Lawyers tend to misuse this provision of the law for their male clients for the purpose of delaying and prolonging the matter and protecting the husband from paying maintenance and alimony to the woman. When a woman has faced violence at the hands of her husband and if she leaves the matrimonial house the legal remedy available to the husband is that he can file a petition in court under the relevant sections for restitution of conjugal rights to compel the wife to resume her matrimonial duties and if the Hon’ble court passes an order in favour of the husband and if the wife does not return to the matrimonial home the husband can also attach her property under Rule 21 Order 32 of the Civil Procedure Code (CPC). A Public Interest Litigation (PIL) was filed by students of Gujarat National Law University (GNLU) namely Ojaswa Pathak v/s Union of India W.P. (C) No. 000250/2019[3] to strike down the said provisions which are still pending in the Hon’ble Supreme Court.
This provision of the law is detrimental to women who face domestic violence. Compelling a woman to return to her husband who has inflicted violence onto her is violative of article 21 of the constitution (Right to life and personal liberty) further violates her privacy and invades her decision of making personal choices. When the entire purpose of the law is to safeguard the woman from such abuse the law is itself making it mandatory for the woman to return else she will face consequences.
MARITAL RAPE UNDER THE PROTECTION OF WOMEN AGAINST DOMESTIC VIOLENCE ACT, 2005
The domestic violence act is a civil law and is a victim centric legislation which includes the reliefs a woman is entitled to namely protection orders, compensatory orders, child custody, residence orders and monetary reliefs which assists the woman to rehabilitate and entitle her to her matrimonial and human rights post the violence. The definition of domestic violence under the Protection of Women under the Domestic Violence Act, 2005 is wide, inclusive and comprehensive. The term domestic violence does not solely include physical violence but also includes emotional, mental, sexual and economic violence. The act provides for remedial measures to the survivor of domestic violence with the view to entitle her to her matrimonial home, the prerogative to incur the compensation for the violence faced by her, for her overall protection and such other revival reliefs. It is pertinent to note that the domestic violence act also includes women in live – in relationships with their partners which is a huge relief to women who form part of such partnerships to seek legal intervention.
The domestic violence act also provides for government stakeholders such as Protection Officers who assist the victim in filing a Domestic Incident Report (DIR) before the magistrate and to make applications for protection orders if the woman claims for protection, to inform the victim about her right to be entitled to free legal aid mandated by the law. Further, the act speaks about the shelter homes wherein women of violence can seek shelter if she has been dispossessed after she was beaten by her husband. If all the stakeholders involved perform their duties competently we can go a long way in curbing the violence against women. We already have excellent laws but the call for strong and competent implementation needs our immediate attention.
DEMERITS OF PROPOSING A LEGISLATION ROOTING FOR MARITAL RAPE
In many cases the woman would not desire to legally separate from her husband due to factors like having children with her husband, undergoing financial constraints or from the fear of being a societal outcast instead she may desire to seek her right to be entitled to reside in her matrimonial house or claim maintenance for her children and herself. Hence, merely criminalising marital rape might subject the husband to imprisonment if a new legislation is introduced but would not yield her the protection and reliefs she desires. Seeking reliefs under the domestic violence act helps the woman to seek the necessary reliefs she desires and she can later initiate criminal action against her husband under section 498A of the Indian Penal Code (IPC) which is read as :-
Husband or relative of the husband of a woman subjecting her to cruelty.—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. Explanation.—For the purpose of this section, “cruelty” means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.]
The reading of the explanation of section 498A sub section (a) of the Indian Penal Code (IPC) states “mental or physical” which can again be given a wider interpretation and a woman can file a criminal suit against her husband under this provision of the law.
Merely criminalizing marital rape does not redeem the woman from the profound violence she has faced. It will not provide her with the necessary reliefs she needs. How many times have we witnessed that women have been rehabilitated after being subjected to abuse, via print or digital media? We have created and portrayed an image of a woman who is disabled and has lost the urge to redeem herself. The primary objective of the state should be to rehabilitate and help the woman to revive herself post the violence and further if she demands prosecution of the perpetrator a criminal suit can be initiated. When the law provides the aggrieved woman with the rehabilitation and the resources to revive herself, when she can lead a life of emotional and financial independence that is when we can truly say that there is a women’s movement in India because that’s precisely when a woman is truly empowered in spite of the abuse she was subjected to.
NOTION OF WOMEN MISUSING THE LAW
When a woman who has faced domestic violence approaches the police station it is either considered as a domestic matter or the husband is called and given a stern hearing. In some cases, the husband via his informants is informed about his wife informing the police about the violence and the husband thereafter files anticipatory bail applications in the court anticipating his arrest. During this period either the violence towards the woman has aggravated and she is abused more for dowry and therefore hardly any matter reaches the court where the woman is alive. Because of such incidents the crime stands unreported and is deemed as a “false case”, such occurrences go onto form data and surveys.
CONCLUSION
Women rights come under the purview of human rights and the bodily integrity and autonomy of a woman should be respected and considered. Violation of her sexual autonomy violates the contitutional rights of a woman which is mandated by the law namely article 14 21 and 19 respectively. If we truly desire a change in women’s lives we need massive social reforms by changing our mindset and ideologies, to believe that women are strong and can lead independent lives. I strongly reiterate that an empowered woman is a source of infinite strength and energy and a woman is immensely emotionally and mentally strong than her male counterpart. Legal reforms may keep happening, the dynamics of the law may change but until we consciously decide to change perspectives and help women approach courts and police stations in order to access justice by walking the journey with them, crime against women will perpetuate till generations to come.
[1] State of Karnataka v/s Krishnappa (1993)
[2] Nimeshbhai Bharatbhai Desai v/s State of Gujarat, 2018, SCC Online, Guj, 732
[3] Ojaswa Pathak v/s Union Of India W.P. (C) No. 000250/2019
Author: Sagarika Bekal
Juris Centre 