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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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Consult Top Trust and Society NGO Lawyers in India

Manoj Kumar Rai

Manoj Kumar Rai

Self Legal Pratice
Exp
Kushinagar , Uttar Pradesh

Specialization

  • Trust and Society (NGO)
  • Intellectual Property
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  • Maternity
  • Police Laws
Anita  Suryavanshi

Anita Suryavanshi

Advocate
Exp
Pune , Maharashtra

Specialization

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  • Animal Laws
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  • Maternity
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vishnu  M.G

vishnu M.G

advocate
Exp
Coimbatore , Tamil Nadu

Specialization

  • Trust and Society (NGO)
  • Intellectual Property
Sivaramakrishnan  K P

Sivaramakrishnan K P

Advocate
Exp
North West Delhi , Delhi

Specialization

  • Trust and Society (NGO)
  • Debt And Lending Agreement
  • Equipment Finance And Leasing
  • Sports Law
  • Tax-Sales Tax
I have a team of lawyers who deal in queries and disputes including but not limited to civil/criminal matters, trademarks and Copyrights, legal notice, transactional contracts, negotiation, company registrations, etc. View Full Profile
Yogesh  Mehta

Yogesh Mehta

Advocate
Exp
Fatehabad , Haryana

Specialization

  • Trust and Society (NGO)
  • Civil
  • Criminal
  • Bankruptcy And Debt
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Avijit  Roy

Avijit Roy

Exp
South Delhi , Delhi

Specialization

  • Trust and Society (NGO)
  • Advertising
  • Animal Laws
  • Environment and Natural Resources
  • Intellectual Property
AMOL  CHOUBAL

AMOL CHOUBAL

ADVOCATE
Exp
Thane , Maharashtra

Specialization

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Sapan R Patel

Sapan R Patel

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Exp
Anand , Gujarat

Specialization

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Lawyers For High Court,Lawyers For Property Case,Civil Lawyers,Criminal Lawyers,Lawyers For Divorce Case,Family Case Lawyers,Lawyers For Consumer Court,Lawyers For Criminal,Labour Law Lawyers For Negotiation,Lawyers For Writ Petition,Lawyers For Wil,Lawyers For Town Planning View Full Profile
A.  Manavalan

A. Manavalan

Advocate
Exp
Ahmedabad , Gujarat

Specialization

  • Trust and Society (NGO)
  • Animal Laws
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KISEN KUMAR AGARWAL

KISEN KUMAR AGARWAL

Practising Advocate
Exp
Kolkata , West Bengal

Specialization

  • Trust and Society (NGO)
  • Debt and Lending Agreement
  • Financial Markets and Services
  • Intellectual Property
  • Landlord and Tenant
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  • What is Trust?
  • Which Laws Govern the Functioning of Trust?
  • What is NGO(Society)?
  • Which Laws Govern Society?

What is Trust?


Trusts, by and large, under Indian law have a statutory premise, in particular the Indian Trusts Act, 1882. By and large, there are two sorts of trusts in India: private trusts and public trusts. The Indian Trusts Act, 1882 represents the private trusts. Public trusts are classified into charitable furthermore, religious trusts. The Charitable and Religious Trusts Act, 1920, the Religious Endowments Act, 1863, the Charitable Endowments Act, 1890, the Societies Registration Act, 1860, and the Bombay Public Trust Act, 1950 are the significant enactments for the acknowledgment and enforceability of public trusts. Besides, trusts can likewise be utilized as pooling vehicles for ventures, for example, mutual funds and venture capital funds. These trusts are administered by a different arrangement of regulations: the Securities and Exchange Board of India (Mutual Funds) Regulations and Securities and Exchange Board of India (Venture Capital Funds) Regulations.

The main necessity of the trust laws is that the creator of the trust ought to demonstrate by words or direct with reasonable certainty his goal to make a trust. Furthermore, the reason for which the trust is tried to be made ought to likewise show up with reasonable certainty. Thirdly, the people for whose advantage the trust it means ought to be sensibly sure. Ultimately, the property, which is to constitute trust property, ought to be assigned with certainty.

Which Laws Govern the Functioning of Trust?


According to Section 7 of Indian Trusts Act 1882, creation of a trust can happen by the following:

  • Persons competent to contract under Section 11 of the Indian Contract Act 1872
  • Hindu Undivided Family
  • By or on behalf of minors with the permission of a principal civil court of original jurisdiction
  • Company
  • Association of Persons (AOP)

What is NGO(Society)?


Non-Governmental Organization (NGO) refers to an organization that has no affiliation to the government and performs voluntary operations in the field of education, wildlife, etc. They are usually funded by the UN or by benefactors. The donations are then used to support their costs and activities in bettering the aspect that the organization focuses on. Some popular NGO's include the Word Wildlife Fund (WWF), The Red Cross, and many others.

Which Laws Govern NGO(Society)?


Some of the Central & State Laws applicable for NGO’s in India are:

  • Indian Trust Act 1882
  • Religious Endowment Act 1863
  • Charitable & Religious Trusts Act 1920
  • Wakf Act 1995
  • Indian Registration Act 1908
  • Sikh Gurdwara Act 1925
  • Trusteed & Mortgagees’ Powers Act 1866
  • Indian Trustees Act 1866
  • Society Registration Act 1860

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