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A Rape Covered Under The Veil Of Marriage

A Rape Covered Under The Veil Of Marriage By Ashish Ranjan Samal, Advocate Orissa High Court 1. Introduction Whenever Mahira, who is 25 years old, has a fight or a heated argument with her husband, he takes it out on her in the bed. She is merely a toy for him whom he can use differently every night. He forces himself on her, every single day, even during her periods. Their relationship has never been about 'consent' and 'equality'. Similarly, many women are subjected to dowry harassment and brutal rape which involves inflictions with torch lights leading to serious injuries. These are just a few examples out of the plethora of such cases. These women are all married and they have to go through such kind of violence and forced intercourse. Is a wife merely a tool to vent out sexual and emotional tension and frustration? Marital rape is an oxymoron. Yet marriage and rape have an unfortunate continued relationship in India. Both rape and marriage are considered ways of gaining control over a woman's body since time immemorial. This was also exemplified in the infamous Imrana rape case[1] where back in 2005, 28-year-old Imrana, a mother of five, was raped by her 69-year-old father-in-law. And the Panchayat (local council) declared her marriage to her husband as void since she had had sex with her father-in-law and by virtue of her physical relationship with her father-in-law she was also told to treat her own husband as her son. The dictionary meaning of the word "rape" is "ravishing or violation of a woman" which in its generic term "Raptus" implies violent theft, applied to both property and person. Rape is the word for forced or coerced sex. It is when the woman has not had the opportunity to freely give consent or she is unable to give consent. Marital rape is the non-consensual sex committed by the spouse. It is also known as partner rape or rape in marriage. 2. Indirect laws addressing Marital Rape Marriage in India is considered a holy sacrament between a husband and his wife. When a man marries a woman, it not only brings implied consent of sexual intercourse but also the man's duty to give due respect to the dignity of his wife. When the husband commits unwanted forceful intercourse with his wife, he breaks the confidence of his wife and breaches her trust in him. Lately, Section 498A of the Indian Penal Code i.e. the anti-dowry law is voluminously misused by the women and a considerable number of rape cases reported each year are also false. Proving marital rape and taking bedrooms to courtrooms in such cases is not only a difficult but also a dangerous idea.[2] As per the Indian penal legislation i.e., Section 375 of the Indian Penal Code- "Sexual intercourse" or "sexual acts" by a man with his own wife, the wife not being under fifteen years of age, is not rape." [3] Exception to Section 375[4] of IPC provides immunity to the husband who rapes his wife and declares marital rape as legal and does not consider it as rape. This shows that the concept of marital rape goes beyond the virtues of Article 21[5] of the Constitution of India i.e. right to live with human dignity. Marital rape prima facie violates Article 14[6] of the Constitution as it creates a classification between married and unmarried women and denies equal protection of the criminal legislation to the former.[7] Though marital rape violates basic human rights that are attributed to every human being under the purview of these Articles there are not many remedies available to the victim. Therefore, in India, marital rape can come under cruelty clauses of section 498A of IPC. Cruelty covers physical and mental harassment. Punishment is imprisonment for a maximum period of three years with fine. The remedies for cruelty under the Indian Penal Code take years to reach an outcome. In view of this, victims remain victims. They either give in, or give up. Another remedy available to the wife is under the Protection of Women from Domestic Violence Act, 2005 which deals with protection of women from physical and mental cruelties of all forms, including sexual abuse. Family Courts as well as Magistrates provide counseling to the husband under domestic violence laws. But unfortunately, the provisions of this Act provide civil remedies only and a wife who wants to see her husband (rapist) punished finds no solution to that. Instead she is the one who struggles and suffers especially if she has children or is financially dependent or is without family support. The only lasting solution to the problem of marital rape is legal separation or annulment of the marriage itself. A legally separated wife can only file a complaint for rape against her husband under Section 376A[8] of IPC.[9] 3. Startling Statistics Marital rape is both common and an un-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 husbands at least once. They frequently do not report these rapes because the law does not support them.[10] According to the UN Population Fund, more than two-thirds of married women in India, aged 15 to 49 years, have been beaten, or forced to provide sex.[11] Bertrand Russell in his book Marriage and Morals saw marriage as one of the most conventional forms of livelihood for a woman where the frequency of undesired intercourse she has to give in to is in all probabilities higher than that endured by a prostitute. [12] ?till the problem of marital rape has received very little attention from the activists, criminal justice system and the society at large. The concept of rape in marriage got recognition only after 1970s. The right of a husband to have sexual intercourse with his wife was considered to be one of the most natural implications of the contract of marriage.[13] International Instruments Article 2 of the Declaration of the Elimination of Violence against Women includes marital rape explicitly in the definition of violence against women.[14] Also the unanimous resolution at the UN conference in Beijing, September 1995 guarantees every woman the right to say no to sex as she wishes, specifically wives. In accordance with these Declarations and Conferences many countries have either enacted marital rape laws, repealed marital rape exceptions or have laws that do not distinguish between marital rape and ordinary rape. These States include Albania, Algeria, Australia (in 1991), Belgium, Canada, China, Denmark, France, Germany, Hong Kong, Ireland, Italy, Japan, Mauritania, Mauritius (in 2007), New Zealand (under Crimes Act, 1961), Norway, the Philippines, Scotland, South Africa, Sweden, Taiwan, Tunisia, the United Kingdom (in 1991), the United States, and recently, Indonesia, Thailand (in 2007), Turkey (in 2005).[15] In England and Wales, the House of Lords held in 1991 that the status of married women had changed beyond all recognition. Lord Keith, compared a marriage of the modern times with a partnership of equals where the wife is no longer the subservient chattel of the husband.[16] 4. Rethinking of the existing law In India, the 42nd Law Commission Report (1972) suggested that marital rape should be criminalized. However, actions were not taken to that effect and the 84th Report (1980) was not in favour of the criminalization. In the year 1996 the Supreme Court of India in Bodhisattwa Gautam v. Subhra Chakraborty[17] classified rape as a crime against the basic human rights and a violation of the victim's most cherished of fundamental rights, namely, the right to life enshrined in Article 21 of the Constitution. However, the Apex Court negated this very pronouncement by not recognizing marital rape.[18] This shows that the Indian courts as well as the law makers have made recommendations and pointed out the need for penalising marital rape several times. Still there has not been any substantial change in this field. 5. The gray areas There are a lot of loopholes in the Indian legal system when it comes to marital rape. It not only provides immunity to the rapist husband but is also silent with regard to a lot of questions. For example, there are no provisions to deal with the cases of rape which are committed by the husband in collusion with a third person or if rape is committed by both the husband and a third person. Whether the third person will only be punished for rape, or whether the husband, would escape punishment for marital rape owing to his relationship with the victim are some of the many questions which the law has failed to adequately answer.[19]  The honourable High Court of Delhi has rightly pointed out in the case of Meena & Anr. v. State & Anr.[20] on 17 October, 2012 where the Court observed that if a girl who is not the wife of the man but is below 16 years of age (15 as per the Criminal Law Amendment 2013) then even the consensual intercourse between the two amounts to rape. But if the girl is above 16 years and is wife of the man, then even the forced intercourse is not rape. This provision in the Indian Penal Code, 1860 is a specific illustration which shows that the legislature has legitimized the concept of child marriage by keeping a lower age of consent for marital intercourse. 6. The deep scars left from the crime Marital rape causes both mental as well as physical trauma which has severe and long-lasting consequences on women. The immediate physical and gynaecological effects of marital rape include injuries to private organs, lacerations, soreness, bruising, torn muscles, fatigue, vomiting, miscarriages, stillbirths, bladder infections. It may also lead to infertility and HIV. Rape in marriage has a lot of long-lasting psychological consequences also. It causes anxiety, shock, intense fear, depression, sleep problems, suicidal ideation, etc. [21] 7. Conclusion The concept of marital rape is an oxymoron. It is a rape under the veil of marriage. Marriage is not a licence for sex. Just because a woman says "I do" to marriage it does not mean that she has said "I do" to sex whenever, wherever, and however her husband wants it. Sex is not an implied 'right' under the contract of marriage rather it is a clear communication of love, mutual consent, caring and respect between husband and wife. A recent incident of gang rape and murder of a student on a bus in Delhi in 2012 led to a mass outcry. This outrage took place when the girl was raped by strangers. Had she been raped by her husband, would it have the same effect? If rape is the violation of human rights then it would continue to be a violation whether committed by her husband or a stranger. The dignity of women either married or unmarried is alike. She cannot be considered as a property or the subservient chattel of the husband In today's scenario we require generation of awareness along with judicial awakenings. What really needs to be done is to teach both boys and men to not rape and educate them to view women as valuable partners in every aspect of life.

Posted By

ASHISH SAMAL

1 week ago

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Who can claim Alimony Rights?

To put it bluntly, when women usually get divorce alimony legit claims are granted by the courts by default. Occasionally, the man may be able to prove that he had to undergo all sorts of harassment and the court on its part may decree that the female pay compensations. Conversely, the court’s decree could be that the husband reverts the ‘stree-dhan which essentially includes all assets that the woman had received when the man and the woman got married. All assets that the woman’s parents and in-laws gave her at the time of her marriage would have to be returned as well. For further read: What Do I Need to Know About Alimony before DivorceIs the claimant entitled to claim alimony rights? The alimony amount to be paid may vary and the court determines the amount on a case by case basis according to a divorce lawyer in IndiaFactors impacting alimony amount and duration are as follows:a) the duration of the wedding - if the couple’s marriage, for example, lasts for a decade the person entitled can claim maintenance for a lifetime b) age and health of the spouse – depending on the how well-off the payer is as well as whether the payer is the owner of properties c) the health condition of both spousesd) how the parties behave e) the spouse that gets child custody would be entitled to and therefore claim to either receive a higher amount for being the custodial parent of a minor child or the maintenance paid would be of a lesser amount f) Incurring the expenditure on account of raising the child g) the social status and the wife’s lifestyle as she and her husband lived together as married couples.h) any other aspect or circumstance of the case, that the court may consideri) husband’s any other legit liabilities, namely, fully dependent aging parents, that the courts have had evidence of by examining. If the wife has a job she would have an independent source of income which would be considered as well. Who can claim the alimony?Wife – In the case of the wife the possibilities are limited to three and they are as follows:a) if she is earning – if the man has a higher earning potential and comes from a decent financial background then she has entitlement and therefore can claim alimony.b) if she is not earning – in such a scenario, the man ought to ensure that the standard of living of the woman remains the same as it was during her married life c) if she remarries – remarriage of the woman would result in the man paying for the children only and the woman is exempted or excluded from alimony payments. The Hindu marriage act, 1955 and section 25 of the act, in particular, is the guideline or the guiding light for those who are under the ambit of the act. Section 25 of the act is appropriately applied with the granting of the final divorce decree. However, applying for this express purpose even after the granting of the divorce, the court will consider the application and alimony would be granted. Besides, all individual alimony claims can be canceled by the court if it's found later on that the person claiming alimony has remarried, or has had an extramarital affair.For further consultation, Vidhikarya can connect you with experienced lawyers.

Posted By

Avik Chakravorty

1 week ago

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Urvi Rathod

(See Reviews)

Experience

: {{lawyerExperience}}

Designation

: President, UR Legal (International Law Firm), Advocates & Legal Consultants

Practicing Court

: Delhi

Location

: Maharashtra, Mumbai City

State Bar Council

: Maharashtra

Reviews & Ratings(View Reviews)

President of UR Legal, an International law firm having their associates in India, Spain, U.K, Far East, Middle East, Australia, Canada etc.

Professional Summary

Our Introduction :

 

UR Legal is an International law firm having their associates in India, Spain, U.K, Far East, Middle East, Australia, Canada etc. Legal consists of Attorneys expertise in different areas of law. Our associates includes Legal Advisor, Counsels, Chartered Accountants (CA) & Company Secretaries (CS).The complicated legal matters & litigation/ arbitration arising out of it, are technically handled by our team of learned Counsels. We help in tackling matters related to Arbitration through our team of Lawyers. 


We have vast experience in dealing clients from the Countries like U.S.A, Belgium, Spain, Switzerland, Poland, Norway, Israel, Norway, Lebanon, Nigeria, Singapore, U.K, Sweden, Japan, Australia, New Zealand, Finland, Ireland, Jamaica, South Africa, Bulgaria, Netherlands, Norway, Mauritius, Canada etc.


Our team is specialized in :

 

Civil law(Litigation), Business law, Company law(Merger & Amalgamation), Rent act, Conveyancing(Including all types of Deeds & Documentation, Stamp duty & registration), Arbitration & Conciliation, Co-operative societies Act, Matrimonial matters, Intellectual property & Trademark ,Surrogacy matters etc. The latest Boom of Redevelopment project is one more addition of our specialisation.

  

Our Services - 

 

I. Legal Services (Documentation, Litigation & Arbitration)

 

- Corporate & Commercial/ Business Law - Corporate Merger and Amalgamation /Amalgamation & Acquisitions, Corporate Debt Restructuring, Project & structured Finance, Capital Markets, Private Equity, Shareholder's Joint venture Disputes, Contractual Disputes, Drafting of Project contracts, All types of Commercial contracts and arrangements, Licensing Contract, Business transfer / Asset transfer Contract, Technology transfer Contract, Entering into various types of Commercial MOU and Agreements, Transfer of Business Contract, Export import Contracts, Project contract etc.;

- Real Estate and Trust - All types of deeds and Documentation including Conveyancing, Cooperative Society's matters, Deemed Conveyance, Redevelopment matters;

-  Dispute Resolution, Arbitration and Reconciliation;

- Intellectual Property Rights and trademark, Banking & Finance, Employment law, Taxation, Technology, Aviation and Shipping, Media & Telecommunications;

- Inbound Immigration and Permanent Residency, Assistance in getting work permit abroad in a countries like UAE, Africa etc. - All types of visas, Family Law (Such as Divorce matters, Custody, Child right, Compensation, Matrimonial matters);

- Competition/Anti-Trust law, All types of Litigation, Projects & Infrastructure, Real Estate matters, Shipping, Commercial Contracts, Energy, Oil & Gas, Environment, Employment and Industrial Relations, Foreign Investment and Exchange Control, IP, International Trade, IT & Outsourcing, Insurance, Joint Ventures, Foreign & Technical Collaborations, Mining & Resources, Regulatory Affairs, Legal Compliance, Bribery & Anti-Corruption, Corporate Insolvency and Restructuring;

- Labour & Employment, White-Collar Crime, Insurance, Healthcare & Pharmaceutical, Medico legal matters (eg. IVF, Surrogacy, Stem Cells);-     

     

II. We handle matters before the courts, quasi-judicial authorities, and tribunals including



Handling of Assignments:

 

Appearing in High Court, City Civil Court and Small Causes Court in various matter, Appearing before Arbitrators in Arbitration matters, Appearing in Family Court’s Matters, Appearing before Debt recovery tribunals, Appeared before Registrar for Stamping & Registration of Documents and Attended matters of various Tribunals.

 

Appearances in Court:

 

a) Types of matters:


Bank suit, summary suit, suit for specific Performance of an agreement, suit for dissolution Of partnership and account, Rent act matters, Writ petition, company petition for winding up,Amalgamation and merger, arbitration petition etc.

 

b) Stages: 

In suit – Direction, interlocutory applications such as notice of motion and chamber summons for Receiver, injunction and other interim and ad-interim reliefs, final hearing, appeal from decree, appeal from order etc.

In Petitions – Acceptance, admission and final hearing, interlocutory application therein for interim and ad-interim reliefs, other misc. applications.

 

Drafting:


Legal Notices, Plaints in different matters, writ petition, arbitration petition, company petition for winding up, civil revision application, appeal, notice of motion, chamber summons, misc. applications, summons for judgment etc.


- Appearing in Hon'ble Supreme Court of India,

- Appearing in High Court Of many states, 

- Appearing in City Civil Court in various states in India

- Appearing in Small Causes Court in various matter in India, 

- Appearing in District Court,

- Appearing in Family Courts,

- Appearing before Consumer protection Forum,

- Appearing before Lok Adalats,

- Appearing before Arbitrators in Arbitration matters,

- Appearing before Debt recovery tribunals, 

- Appearing before Registrar for Stamping & Registration of Documents.

- Appearing before Company Law Board; 

- Appearing before appellate Tribunal Authority for Industrial & Financial Reconstruction;

- Appearing before Consumer Protection Forum Appearing before the Telecom & Electricity Regulatory Authorities and Appellate Authorities; 

- Appearing before Debt recovery tribunal (DRT)

- Environmental Tribunals;

- Appearing before Competition Commission (The Monopolies & Restrictive Trade Practices Commission)

 

III.  Company and Corporate Services -

 

The Global Operation of the firm as related to Company and Corporate Structure is handled by UR Legal's branches and associates having extensive experience in the areas of Corporate Laws and Procedures, Mergers and Amalgamations, SEBI ICDR Regulations, Takeover Regulations, Prohibition of Insider Trading Rules, RBI NBFC Regulations and FEMA. It includes Document drafting, Litigations & representations, Arbitration, Intellectual Property Rights, Banking services.

 

Ø  Setting up of Business in India which includes Incorporation of Private Limited, Public Limited Companies, Wholly owned Subsidiaries in India, Wholly owned Subsidiaries outside India, Incorporation of Foreign Company, Incorporation of Limited Liability Partnership, Incorporation of One Person Company, Setting of business through Branch office/ Liaison Office in India, Joint Venture/ Foreign Collaborations);

Ø  Corporate Secretarial and Management Services which includes holding Company’s Meetings, Ensure compliance of Secretarial Standards, Drafting of Minutes and other requisite documents, Adherence to requisite compliance under Companies Act);

Ø  Onshore & off shore restructuring Services and Corporate Restructuring which includes Amalgamation / merger / takeover / De-merger / Slump Sale, Revival of defunct / sick companies);

Ø  Conversion of Company to LLP and vice a versa, Winding up or Exit of Companies / LLPs, Closure of Business or Winding up;

Ø  Services relating to Due diligence and Secretarial Audit;

Ø  Services relating to Foreign Exchange Management Act;

Ø  Services relating to SEBI and Listing Agreement Compliances.

 

Our areas of practice tackle the tricky issues with assistance of our professional sources all over India to provide the cost effect services to our clients.

    

IV. Accounting and Taxation Services

 

Ø  Accounting

Ø  Audit

Ø  Taxation 

 

Our Team Spirit & Values:

 

We believe in the motto that “Work is worship”. In case of urgency our dedicated Attorneys, Chartered accountants, Company Secretaries works round the clock. Our Reward is satisfaction of our client. Loyalty, Team Spirit, Enthusiasm, Devotion makes us special from the rest. “Action speaks louder than the words”. Ur legal insists on and maintains highest standards of ethics, integrity, confidentiality and conduct amongst its professionals and Clients. Firm enjoys professional relations with a large number of Institutions, MNCs.


Expertise In

Primary Expertise

Category Experience(in years) Cases Remarks
Civil 22 years 400 Our team is specialized in : Civil law(Litigation), Business law, Company law(Merger & Amalgamat... Read More

Secondary Expertise

Expertise In

Civil

Experience 22 years

Number of Cases 400

Our team is specialized in : Civil law(Litigation), Business law, Company law(Merger & Amalgamation), Rent act, Conveyancing(Including all types of Deeds & Documentation, Stamp duty & registration), Arbitration & Conciliation, Co-operative societies Act, Matrimonial matters, Intellectual property & Trademark ,Surrogacy matters etc. The latest Boom of Redevelopment project is one more addition of our specialisation.

Practicing Court Name

Delhi

Supreme Court

Bombay High Court

High Court

Madhyapradesh High Court

High Court

Gujrat High Court

High Court

Bombay City Civil and session Court

Sessions Court

Family court at Bandra

Family Court

Thane District court

District Court

Educations

LL.B

mumbai university

Other Info

No. of juniors with me

3

Size of my team

6

No. of intern work per year

-1

Other Legal Experience

UR Legal

Arbitration

Other Achievements

Winner of the 2018 Corporate Intl Magazine Global Award: "Surrogacy Law - Law Firm of the Year in India".

1 / 2018

Winner of the 2017 Corporate Intl Magazine Global Award: "Surrogacy Law - Law Firm of the Year in India"

1 / 2017

Winner of AI Acquisition International Excellence Awards 2016:Most Outstanding International Law Firm

11 / 2016

Winner of “Global Law Experts (GLE) 7th Annual Global Law Experts Awards under category "Surrogacy Law Firm of the Year in India – 2016"

6 / 2016

Winner of "Acquisition International’s "Distinguished in Dispute Resolution Award, 2016".

6 / 2016

Winner of Corporate Intl Global Award for "Surrogacy law firm of the year in India" in 2016

1 / 2016

Winner of Corporate Intl Global Award for "Surrogacy law firm of the year in India" in 2014.

1 / 2014

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