Read my previous blog here. In continuation …
I have started my fellowship journey at Kutch Mahila Vikas Sangathan (KMVS) as a project associate of the ‘HELLO SAKHI’ program. This is a legal program where we give legal services to the direct women survivors of violence. Everyday I meet with people who face violence regularly in their daily life. During audit I have seen so many case files of violence.There are many kinds of violence and most of them are against women.
Domestic violence (DV) is the most popular cases in KMVS. But DV has so many variety in that sense. In the last blog I have shown how justice system work around us. In this blog I will give you some case studies and will discuss about some misogynistic laws from our constitution. How laws contradict with each other in itself.
What Is Exception-2 Of Section 375 (IPC)
In Indian Constitution, IPC (Indian Penal Code) Sec.375 talk about Rape. Here it says when we can say a man committed rape. It shows that without consent of the girl or the women, any kind of intercourse or forced penetration will be call as rape. Now Indian Penal Code is change into Bharatiya Nyaya Sanhita. Here Sec. 63 explain the rape part. But in both IPC and BNS marital rape is a non-criminal offence. In Sec.63, Exception-2 of BNS (old IPC Sec. 375) it is written that ‘sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape’. It is stated that it can be a ground for divorce but it is not criminal offence.
Now we will see two small case studies and can discuss some point on it.
Caselet 1
Jamna Ben (name changed), a 38 years old women lives in a village at Kutch district. She lives with her husband Nitesh (name changed), a 40 years old man and her son Rishi, a 16 years old boy. She is being married for 18 years now. Nitesh drinks everyday, comes home and tries to rape her. Jamna said, “I don’t love him anymore, so I don’t want to make any Physical relation with him.”
But Nitesh doesn’t listen to her. He only pays for the rations and her son has to pay the other important bills. By giving the ration he wants to prove that he looks after his family. So, he doesn’t have to appear in court for maintenance case. Now she has nowhere to go and therefor she makes her mind that she will stay in this situation till the day her son will save her from this evil.
Caselet 2
This case is about Sushma Ben (name changed), a 26 years old women. She was married to Ramesh (name changed), a 30 years old man in 2022. After 6 months of marriage Sushma got to know that Ramesh had an affair with another woman. Since then Ramesh forced her in sexual intercourse without her consent. He filmed their private moments and as Sushma explained to us, Ramesh used to show these clips to his friends. She asked her in-laws for help but none helped her. She has came to her natal house and they have been supported her. After a long process she got divorce. But she wanted to punish her husband but couldn’t do it.
In both the cases these women faced marital rape but couldn’t do anything about it. What should we do as a feminist organisation? Why do I feel so helpless in this situation? In social sector if we talk so much about consent than why marital rape is not the part of DV yet? Why the institution of marriage give so much power to men?
According to Amnesty International data, 77 out of 185 (42%) countries criminalize marital rape through legislation. Many countries along with India allow rapist to avoid prosecution by marring their victims.
We have a famous Hindi movie named ‘RAJA KI AYEGI BARAT’ (1997), where we see the exact thing to happen. Here the heroine Mala was raped by Raja, the so-called hero. She took him to court and the judge ordered her to marry her rapist as punishment to him. What should we learn from it.
Current Situation
Right now in Supreme court a case on marital rape is ongoing between ‘Union of India vs Ms. Ruth Manorama (Dalit Activist)’ since 2022. The last CJY (Chief Justice of India) Justice D.Y. Chandrachud didn’t give any judgment on it.The whole feminist world is looking for the judgment eagerly. Senior Adv. Karuna Nundy, who represented the All India Democratic Women’s Association and opened the case for the petitioners said.
“Protecting a married woman from rape would not destroy the institution of marriage. Marriage is personal and not institutional. Sexual choices and consent are essential attributes of autonomy.”
The Contradiction Between Laws
ARTICLE 14: Here the Indian constitution ensures that every person is equal before law and they get equal protection under law.
ARTICLE 15: It establishes that there should not be any discrimination on the basis of religion, caste, sex, race, or place of birth. These provisions emphasize the constitutional intent to achieve equality among the population, after centuries of religious and sexual discrimination.
ARTICLE 21: It talks about Right to live with dignity, Right to a healthy environment, Right to personal liberty, and most important Right to equality.
In all three articles constitution tries to ensure that every person is equal to law and everyone gets the same treatment under the Indian Constitution. But as per sec.375(IPC) or sec.63(BNS), exception: 2, a wife is presumed to deliver perpetual consent to have sex with her husband after entering into marital relation. now where is the personal liberty of the wife? Aren’t we just continuing the discriminated societal thoughts through our constitution? aren’t these laws contradicting with each other?
The Role Of The Union Government
The state released submitted an affidavit of 49 pages in the Supreme Court. It says that marriage is a relationship of a ‘different class’ and has an ‘entire ecosystem’ of laws, rights and obligations. It stated that criminalizing marital rape may seriously impact the conjugal relationship and may lead to serious disturbances in the institution of marriage. The affidavit also says that including marital rape under anti-rape laws would be ‘excessively harsh’ and ‘disproportionate’.
It added that there were existing laws that dealt with domestic violence, sexual harassment and assault that protected a married women’s right.
Do Women Really Have The Power To Give Consent?
I think, most of the time we don’t have the power to give consent. Before the age of 18, we are not accepted of giving consent and after 18 years of age if someone is married to someone, it doesn’t matter if the sex is consensual or not. In the POCSO that girl said that the sex was consensual still the law is against them, here also with these women consent doesn’t matter.
0 Comments