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The 2005-06 National Family Health Survey (NFHS) found that of the 80,000 women interviewed, 93% stated that they had been sexually abused by their current or former husbands. Ten years later, 2015-16 NFHS showed no improvement, as the data estimated that 99.1% of sexual assault cases go unreported and that the average Indian woman is 17 times more likely to face sexual violence from her husband than from others.
Currently, the bench of Justices Rajiv Shakdher and C. Hari Shankar of the Delhi high court is hearing arguments on a batch of petitions challenging Exception 2 to Section 375 of the Indian Penal Code (IPC) in the case RIT Foundation & Ors. vs Union of India. The arguments have been focused on the need for Exception 2 to S. 375 to be deleted, as it disregards the bodily integrity of a married woman. The court, on the other hand, is apprehensive that by deleting Exception 2, it may be creating a new offence, and that may amount to overstepping its role as creating a new offence is the mandate of the parliament.
Exception 2 to S. 375 IPC states that sexual intercourse by a man with his own wife, the wife not being under 18 years of age, is not rape. Due to this exception, a common misconception is that marital rape is not a crime in India and that a husband can have forced sexual intercourse with his wife with impunity and that he will not have to face criminal prosecution. It is pertinent to note that cruelty to wives is a criminal offence in India even at present.
In 1983, a new section was added to the Indian Penal Code (IPC) to protect women from all types of domestic violence. S. 498A, IPC states that the husband or relative of husband of a woman subjecting her to cruelty…shall be punished with imprisonment for a term which may extend to three years and shall also be liable to a fine. The section further goes on to explain, “for the purpose of this section, ‘cruelty’ means any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman”. Both mental and physical cruelty have very broad definitions in law, thus physical cruelty includes forcing the wife to have non-consensual sex.
However, this penal provision with stringent punishment was not helping curb domestic violence experienced by most women. Since there were no protective measures to safeguard the rights of women like psycho-social support, referrals to services such as medical or legal aid, shelter, skills training, job referrals, etc., there was a need to find alternate solutions. In 2005, the Protection of Women from Domestic Violence Act (PWDVA) (a predominantly civil law with criminal consequences) was enacted. PWDVA unpacks the definition of mental or physical cruelty as – physical, economic, emotional and sexual violence.
As part of an organisation based in Mumbai that provides legal representation and social support to victims of rape and domestic violence, I have had the opportunity to interact very closely with victims of violence and observe their expectations and engagement with the law. I have also studied the response of the justice delivery system towards women.
A large number of women in our country are subjected to brutal domestic violence. Forcible violent sex is one form of violence but along with that or irrespective of it, a woman has to endure other physical violence – fractured skull, broken limbs, scalds to her body. This is coupled with mental, verbal and economic violence that she and her children have to face. What we see is a continuum of violence.
A 2011 study by the International Center for Research on Women (ICRW) stated that 65% of Indian men surveyed said they believe there are times when women deserve to be beaten. The 2005-06 NFHS has stated that more than 54% of men said that it was okay for a man to beat his wife if she disrespected her in-laws, neglected her home or children, or even over something as trivial as putting less (or more) salt in the food. The study revealed that 31% of married women were physically abused and 10% were subjected to “severe domestic violence” such as burning or attack with a weapon. Another 12% reported severe violence which included at least one of the following injuries: bruises, wounds, sprains, dislocation, broken bones or broken teeth, and severe burns, while 14% experienced emotional abuse.
In spite of the wide prevalence of domestic violence in the country, very few women approach the court for relief and redressal. In a society where marriage is perceived to be the “be all and end all” of a woman’s life, a woman who wishes to break the shackles of an oppressive marriage and press criminal charges against her abuser is viewed as deviant. The few women who dared to approach the court are labelled as ‘gold diggers’ and are often said to be misusing the law to harass their husbands and their in-laws. When we study S. 498A cases, we see that reported cases do not lead to convictions. A study conducted by the Centre for Social Research, Delhi revealed that out of 100 cases registered under S. 498A, only in two cases did the accused get convicted. The only cases which ended in conviction were those where the woman had died. There were no convictions in any of the cases registered only under Section 498A.
All stakeholders who have been given the mandate to protect women including the judiciary, the police force, the protection officers, Women’s Commissions and even women themselves prefer to opt for “counselling”, where women are advised to adjust, reconcile and “save” their marriages even at the cost of danger to their life, simply because nothing else exists for them beyond the marriage. In cases of extreme domestic violence, the police register a simple non-cognisable (NC) complaint and send the woman back. At best, they would call the husband and chastise him or even lock him up for a night or two for causing a disturbance. When he is released, the intensity of the violence escalates and, in some cases, the woman may be thrown out of her matrimonial home, with or without her children.
What then do we expect from the deletion of Exception 2 to Section 375 IPC? Do we believe that women who have been raped by their husbands along with the continuum of other types of violence, will walk out of their marriage and press criminal charges against their husbands, that too in an offence that warrants severe punishment, including the death penalty?
More importantly, the patriarchal presumption that one has to address, especially as feminists, is the perception that vaginal violation is a graver form of violence than any other brutality. The demand for deletion of the exception seems to subscribe to the mindset that even within marriage, rape forms a category separate from other physical, emotional, verbal and economic abuse. If the violence that a woman faces is a continuum of a life of degradation and despair, can the act of non-consensual penetrative sex be rendered more heinous and therefore placed on a pedestal?
One option before the Delhi high court can be to unpack the definition of ‘physical and mental cruelty’ in S. 498A, to include the same definition as used in PWDVA and then go on to provide all the protective measures to women. These includes assigning a support person to the survivor, ensuring a time-bound trial, trained and sensitive police machinery, reliable and effective legal aid and a proactive judiciary.
Audrey Dmello is the director of Majlis, a legal and social support centre for victims of sexual and domestic violence in Mumbai.