The Sikkim High Court recently held that slight penetration without any visible injury is enough to constitute rape under Section 376 AB of the IPC as well as Section 5 of the POCSO Act. This reinforces the evolving definition of rape as emotional and psychological, as well as physical violence.
On the other hand, the Punjab and Haryana High Court has just stated that a rape survivor's statement is not gospel truth. Charges have to be proved beyond doubt. Now it would be very difficult for a victim to prove rape when there is only slight penetration and no visible injury. Thus, the above two statements by eminent jurists seem contradictory.
Till recently, exemptions were made for husbands under the rape law under the Indian Penal Code. In May, the Delhi High Court gave a split verdict on pleas to strike down this exemption. Now, the Supreme Court is considering a bunch of petitions on this amid the rising demand to criminalize rape within marriage.
Head of the Delhi High Court bench Justice Rajiv Shakdher ruled that the exception made for husbands is unconstitutional since it goes against the principles of the right to equality. Justice Hari Shankar, the other judge in the bench, felt that the exception for husbands is constitutional because it is based on ‘intelligible differentia’, or a difference that is clearly understood. Marriage comes with the ‘legitimate expectation of sex’, so if the law is changed, husbands would be at risk of being labeled as rapists. This according to Justice Hari Shankar, would be ‘completely antithetical to the agency of marriage’.
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This split verdict has raised a huge debate. Justice C Hari Shankar has quoted previous court judgements that denial of sex amounts to cruelty in a marriage. He compared assault on a woman by a stranger, with a husband trying to force sex with his wife without her consent. “That what he (husband) is doing is wrong, no one can deny. The distinction between the two situations is that, where the parties are married, the woman has consciously and willingly entered into a relationship with the man in which sex is an integral part,” Justice C Hari Shankar said.
But rape is rape. Why should the culprit’s status or other circumstances like marriage matter? Use of force and violence by one human being upon another human is wrong. A wrong is wrong, no matter who does it.
On the flip side is the apprehension that any married man can be falsely accused of rape which will invite strong action from the law. Very strong penalties for filing false complaints, preventing high-handed arrests and making bail easier, are some ways that misuse of the law can be discouraged. Our lawmakers and enforcers need to respect in practice that an accused should be presumed innocent until there is a judicial verdict. Defendants in criminal cases of marital violence need to be treated better until proven guilty.
Latest National Family Health Survey-5 report finds that 32% of married women (18-49 years) have experienced physical, sexual, or emotional spousal violence. Domestic violence against women in India has declined from 31.2% to 29.3%, but 30% women between the age of 18 and 49 have experienced physical violence since the age of 15 years, while 6% have had the horrible experience of sexual violence in their lifetime. Around one third of women in India have been victims of physical or sexual violence at some point in their lives according to the NFHS. Such a massive number of women are suffering or have at some time suffered. Yet only 14% of women who have experienced physical or sexual abuse have formally complained to any authority or sought justice.
The majority of sexual violence – in India (95.6% according to National Crime Records Bureau statistics, 2020) and world over – is inflicted by persons known to the victims. The breach of trust and the systematic abuse under the cloak of a socially sanctioned relationship are just as harmful to a woman as a violent attack by a stranger. Brushing under the carpet the issues of domestic violence and rape within marriage dismisses the harm done to an alarming number of women. It also makes it natural and normal just because she is married.
We obviously need to restructure the existing systems so that helpless women get relief from domestic violence and live with peace and dignity, while husbands and their families are protected from false complaints filed by extortionists out to destroy their lives and reputation.
The law has been used as a weapon rather than a shield of protection, experts have observed. Now the greatest difficulty in many such cases of marital violence, especially in accusations of mental torture or marital rape, is the absence of clear cut physical evidence. Reliable impartial witnesses are rarely found, so false accusations can be pursued. Genuine cases too are not easy to prove. In the absence of witnesses other than immediate family, it is only the word of one person against the other. Who is making false accusations, and who is telling the truth? God alone knows and we can only pray that karma catches up with the real wrongdoer. Social activists and intellectuals can debate, quibble on legal aspects or go on candlelight marches. Our already overburdened courts take decades to pass judgements on marital violence cases, which can then be appealed to higher courts. An unscrupulous partner can shout false accusations endlessly. All this gives small consolation to the genuine long suffering victim, who may be too exhausted and depressed to fight a prolonged and expensive battle for justice.
The laws are being revised from time to time. Unscrupulous people are also finding new ways to slip through legal loopholes. On 5th August, a 21-year-old newly married woman died in Bihar’s Begusarai district. Her husband and in-laws allegedly forced her to drink acid over dowry demands. Sadly, such horrible incidents continue to happen in our country. News items like this soon get buried under more exciting news like Alia-Ranbir, and people like us carry on with our lives as usual.
To prevent such tragedies, the Government of India added Section 498A to the Indian Penal Code in 1983. The aim was to empower women and safeguard them from violence in marriage. Under Section 498 A of the IPC, extortion of any form of property by treating a woman cruelly is punishable under the law. Lawmakers introduced these provisions to protect women from harassment and physical and mental cruelty. More women appealed to the law to get justice and relief from cruel marriages. There were also claims that innocent men and their families were falsely accused and harassed.
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Women are not the only victims in these painful battles. The courts are now also recognizing widespread misuse of section 498A by women and their families to harass and get the upper hand over the husband. The Supreme Court has now put an end to the automatic arrest of husbands and their families under Section 498A. The court said that complaints under the law would have to be referred to the Family Welfare Committees that will be set up in every district. No arrests can be made until the committee investigates the matter. The new rules will not apply in cases where a woman is physically injured or dies.
In a recent judgement, the Karnataka High Court observed that a woman falsely accusing her husband of impotency and not performing matrimonial duties before her relatives, amounts to mental cruelty. Such observations by experienced jurists would show that false accusations against husbands are a reality today.
Over the years, experts have observed that considerably more dowry harassment cases result in acquittals. Comparatively few dowry harassment convictions happen after all due diligence and legal procedures are completed. Data from the National Crime Records Bureau shows that around 1,00,000 cases are filed under section 498A every year. However, the rate of conviction — where the accusation was proven — varied between 20% in 2011 and 14% in 2015. This is much less than the 46% conviction rate under all IPC sections in 2015. This is considered to show that many false cases are being filed against husbands and their families, since a large number of accusations are not proven.
THE ROLE OF WOMEN SHELTERS
While lawmakers and intellectuals research and fine tune the legal and judicial systems, we also need to think of practical measures to help distressed victims of domestic violence.
Women’s shelters have a well established presence in over 45 countries, but this excellent system has not yet taken roots in India. Women’s shelters or battered women’s shelters are safe houses offering temporary protection and support to women escaping from domestic violence of all forms. Some shelters offer the same help to people of all genders at risk. The shelters offer a safe place where victims of domestic violence are offered a safe place to stay until they choose a way to move forward with their lives. Many shelters offer a variety of additional support such as legal and counseling services, and shelter for dependent children.
Women’s shelters offer resources to help women and their families find their feet and build a new life. Today, over 45 countries around the world offer the valuable resource of women’s shelters. They are supported by government agencies as well as NGOs. Philanthropists also help and support these institutions.
The USA, Canada, and Europe have a well established and valuable network of shelters for victims of domestic violence. Countries like the Netherlands and Austria are also opening social housing for long term stays. This is in keeping with the Istanbul Convention against Violence against Women and Domestic Violence. This Convention was signed by 47 Council of Europe member states in 2011. An article in the Convention sets the creation of women's shelters as a minimum standard for compliance.
Shelters for abused women are not new to Asia. Buddhist temples or Kakekomi Dera in ancient Japan offered shelter to distressed women who were planning to seek divorce. A formal shelter system in keeping with today’s needs was started in 1993 when the grassroots women’s movement in Japan built the first women’s shelter in 1993. Today, there are over 30 shelters in this tiny country, while in India such resources are yet to make a significant impact.
In India, greater availability of such medium or long term shelters will be a huge help to victims of domestic violence who have no family support or lack financial resources. Women’s shelters, with their simple basic facilities will not appeal to potential false complaint filers, since they will prefer to live in comfort with their parental family and other supporters. Hence, the authorities can factor this in when they assess the genuineness of complaints of domestic violence, marital rape, etc.
We hope philanthropists and NGOs will come forward with government agencies to build and support such shelters to help truly distressed women in India.
With full faith in the moral goodness of humanity, we can only hope that most married couples sincerely try to do their best to make their marriage work successfully. It’s easy to fight, make false accusations and break relationships over false pride and inflated ego issues. There is still much to be said in favour of the time honoured institution of marriage. When both partners take a positive approach, marriage can be a lifelong source of affection, encouragement and moral and financial support. Mutual respect, affection and love needs to be nurtured by both husband and wife. In this age of equality, enlightened and educated men and women will need to realize that it takes two hands to clap. It takes time and sincere effort to build a happy family and home, but the long term rewards can be priceless.
(DISCLAIMER: This is an opinion piece. The views expressed are the author’s own and have nothing to do with OTV’s charter or views. OTV does not assume any responsibility or liability for the same. The author can be reached at monideepawrites@gmail.com.)
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