Shaping the legal recognition of marital rape in India

This article is Part 2 of a series on the complexities of the marital rape debate in India. It outlines certain steps that can be taken towards efforts to recognise the concept of marital rape in India.
 
The issue of marital rape should not be seen as a standalone one, but rather as symptomatic of traditional dominant patriarchal norms and notions in Indian society – perverse and pervasive. The unrecognition of marital rape in the Indian legal framework (except when the victim is under 18 years old) reinforces that women cannot make decisions regarding their body and sexuality after they are married.
 
This is rooted in the historically unequal relations between men and women in which there is a prevalence of discriminative attitudes towards women; they are less valued and considered property of men, especially after they are married. Religion, which deems marriage as sanctimonious, more often than not legitimises these problematic attitudes.
 
An overhaul of such attitudes and consequent behavioral patterns is central to addressing the issue. It is also critical to denounce baseless linkages between culture and justice; however, it is not possible to entirely condone the larger audience, which still believes in such patriarchal norms and constitutes a large percentage of stakeholders in the decision making of such laws.
 
Nonetheless, a joint effort towards (i) strengthening our existing frameworks where some laws could be strengthened to act as a deterrent, and consequently facilitate protection to victims, (ii) advocating for a new policy that criminalises marital rape, and (iii) altering attitudes in long term, could together concretise efforts to deal with marital rape whilst gaining support from even the difficult audience.
 

• Strengthening the existing legal framework and State Institutions:

  • Improving the implementation of the already existing 2005 Prevention of Domestic Violence Act in India, under which, the term domestic violence has been defined in a manner that includes actual abuse or threat of abuse that is physical, sexual, verbal, emotional or economic. This is the most feasible option for achieving the twin objective of recognising and condemning sexual abuse within marriage, and diminishing and discouraging the culture of rape within marriage. Efforts should be made to strengthen the provisions under the act; make proper budgetary allocations, address major disparities in the implementation of the law in various states, establish separate special courts for speedy justice and deal with the acute shortage and disparity in appointment of protection officers.

  • Provisions for speedy separation and quick applicability of 376B, according to which, “whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine”.

• Advocating for new policy:

  • Establishment of a comprehensive legal framework, which requires defining the concept of ‘consent’ within marriage, laying out punishment/deterrence measures, and monitoring mechanisms.

  • Intervention and amendments at the Religious Acts level, since the central law might not supersede Religious Acts at all times. This means synchronising the proposed framework with different Religious Acts in India i.e. Child Marriage Restrain Act, Hindu Marriage Act, Indian Christian Marriage Act, Islamic Civil law, Special Marriages Act.

• Altering attitudes:

  • Discussion with religious leaders about spreading awareness about sexual violence within marriages.

  • Police giving out information regarding sexual violence within marriages and the need to respect women through informational videos and messages within police station, their websites, social media platforms (Facebook/ Twitter).

  • Training of the facilitators; sensitisation schemes and even awareness programs for protection officers. It has been noted that a large number of the officers do not come from a social work or law background or have any kind of prior training.

 
In light of the UN Committee on Elimination of Discrimination Against Women recommending the Indian Government to criminalise marital rape and the ruling government making promises towards “zero tolerance of violence against women”, it becomes imperative to recognise the concept of consent within marriage.
 
Meanwhile, due to the sensitivity of the problem, the efforts that should be need to be tactical. Through material, legal and structural changes we can help address the complexity of the socio-cultural ethos and its interaction with the growing debate on women’s safety.
 
Pallavi Karnatak
March 5, 2019

 
 

source https://indiaoutbound.org/shaping-the-legal-recognition-of-marital-rape-in-india/