By SHRI RAM SHAW
NEW DELHI: Does forced sex by husband with his wife constitute an offense of rape under Section 375 (Indian Penal Code)? Both the judges of Delhi High Court recently came out with different opinions, so now the Supreme Court will decide. Now, women across the country have their eyes on the Apex Court.
“Split verdict by the Delhi High Court on criminalisation of marital rape deserves a crystal clear response from society at large and the community of women in particular. Marital Rape is as gruesome as rape by a stranger and cannot be condoned and thus must necessarily be punished. Marital rape convicts must be punished,” said Isha Tripathi Suri, a Delhi-based well-known woman entrepreneur and life coach, in an exclusive conversation with Navrashtra Media.
Isha is of the firm view that given the patriarchal society in India, women are a disadvantaged group and therefore, find it difficult to raise their voice in cases of domestic abuse and sexual offences due to societal pressure. In such circumstances, reporting marital rape is even more difficult and once a woman picks up the courage to do so, to offer her no relief or remedy is a collective failure of a society governed by the rule of law.
Traditionally, experts are consulted to make the judicial process proper. Therefore, Delhi and the Supreme Court need evidence from the Vedas on the marriage ceremony. For example, Saptapadi has prime importance in Hindu marriage. This is also the real proof of marriage. Consider its articles five, six and seven:
5. स्वसद्यकार्ये व्यवहारकर्मण्ये व्यये मामापि मन्त्रयेथा
वामांगमायामि तदा त्वदीयं ब्रूते वच: पंचमत्र कन्या !!
(If you take my advice while spending in your household work, marriage etc., transaction or any other, then I accept to come to your Vamang.)
This verse completely outlines the rights of the wife. Many people do not consider it necessary to consult their wife in every kind of work. Now if the wife is consulted before doing any work, then it not only increases the respect of the wife, but also gives a feeling of satisfaction towards her rights.
6. न मेपमानमं सविधे सखीनां द्यूतं न वा दुर्व्यसनं भंजश्चेत !
वामाम्गमायामि तदा त्वदीयं ब्रवीति कन्या वचनं च षष्ठम!!
(If I am sitting among my friends or other women, then you will not insult me there for any reason in front of everyone. If you keep yourself away from gambling or any other kind of addiction, then only I accept coming to your Vamang.)
In the present context, this verse contains serious meaning. After marriage, the behavior of some men starts changing. He scolds his wife in front of everyone on the slightest thing. How much the heart of the poor wife must have been hurt by such behavior. Here the wife wants that, of course, in solitude, the husband scolds her as she pleases, but her honor should be protected in front of everyone, as well as he should not destroy her household life by getting caught in any addiction.
7. परस्त्रियं मातृ्समां समीक्ष्य स्नेहं सदा चेन्मयि कान्त कुर्या!
वामांगमायामि तदा त्वदीयं ब्रूते वच: सप्तममत्र कन्या !!
(You will consider other women like mothers and will not make anyone a partner in the midst of mutual love between husband and wife. If you give this promise to me, then only I accept to come under your Vamang.)
After marriage, if a person becomes misguided by the attraction of any other woman, then what’s the result? You all know this very well. Therefore, through this promise, the girl tries to secure her future.
However, Isha Tripathi, who runs a flourishing security agency – Shakti Security Services, feels that non-criminalized nature of marital rape is a remnant of the British era, based on Victorian patriarchal laws that did not recognize men and women as equals, did not allow married women to own property, and merged the identities of husband and wife under the “Doctrine of Coverture.”
Also, not recognizing marital rape as a crime is violative of Article 14 of the Constitution, whereby women are being categorized on the basis of their marital status. While an unmarried woman can get legal recourse on being raped by a stranger, married women have to bear the trauma and indignity within their homes. It is important to understand that married women may actually find it more difficult to escape abusive conditions at home because they are legally and financially tied to their husbands.
This view has been held by Justice Shakdher, one of the judges on the 2 member bench of Delhi High Court as he held that Exception 2 to Section 375 of the Indian Penal Code (which prescribes the marital rape exception) is “violative of Articles 14, 15, 21 of the Constitution and hence must be struck down.”
Welcoming the view of Justice Shakdher, Isha said, “It also needs to be pointed out that marital rape has been impeached in more than 100 countries at present but, unfortunately, India is one of the only 36 countries where marital rape is still not criminalized. The UN Committee on Elimination of Discrimination Against Women (CEDAW) in 2013 recommended that the Indian government should criminalize marital rape. The JS Verma committee set up in the aftermath of nationwide protests over the December 16, 2012 Nirbhaya case had also recommended the same.”
“I believe that while conjugal rights are central to the institution of marriage, and their denial has been held as a valid ground for divorce, marital rape can hardly be seen as a practice to guarantee these rights. It is predatory and humiliating for the woman who needs to be respected as an individual and equal stakeholder in a marriage,” she added.
Calling upon all women organizations, human rights organizations, parliamentarians and judiciary to review the existing laws and ensure dignity and safety to women, Isha said, “Such an act that puts women in bondage in a respectable institution of marriage is not only detrimental to the very institution, it is also a blot on the society and family values. I hope that the reconstituted larger bench of the Delhi High Court which will hear the matter of criminalisation of marital rape will uphold the right of married women not to be raped within the confines of their marriage.”