Should a man be charged with rape if he has sexual intercourse with his unwilling wife? Men say “No”. The government says “Yes”.
Should a rape victim be allowed to marry the man who destroyed her self-esteem? “Yes,” feels chief justice of India KG Balakrishnan. “No,” indicates popular wisdom.
Intriguing legal questions, but valid ones.
As the world celebrates International Women’s Day on Monday, the government plans to protect women from all possible tormentors, including their husbands, by introducing “marital rape” as a separate provision under the proposed new law against rape and sexual assault.
There is no law at present to identify marital rape and penalise husbands for forced sex with their wives but the Domestic Violence Act that covers sexual abuse as part of violence on women. However, soon, husbands may find themselves behind bars if their wives lodge a complaint. The proposed penalty for marital rape will be three years’ imprisonment with fine.
Besides, sexual intercourse by a husband with his estranged wife living separately under a decree of separation, etc, without her consent, too, will seen as an criminal offence punishable with imprisonment ranging from 2 to 7 years.
The department of legal affairs has drafted the Criminal Law (Amendment) Bill based on recommendations of the women and child development ministry (WCD) and the National Commission for Women (NCW) to amend certain sections of the Indian Penal Code (IPC), the Code of Criminal procedure (CrPC), 1973; and the Indian Evidence Act, 1872, to recognise new categories of sexual assault besides redefining rape by including sexual assault in any form in its definition.
“The definition of rape needs to be expanded to take into account forms of sexual assaults not covered in the existing definition under the IPC… the proposed bill recognises marital rape as an offence and also incorporates a specific provision on sexual assault by a relative or a person in position of trust or authority or in a position of social, economic or political dominance,” said justice Geeta Mittal of Delhi high court.
While women groups say that marital rape is a worldwide phenomenon and almost 50% of women face forced sex by their husbands, men’s organisations said the changes in law would essentially damage the fabric of a family system.
“This means that the government wants police to enter bedrooms now, which is a sure shot way to break a marriage as no relationship will work if these rules are enforced,” said Virag Dhulia of the Save Indian Family Foundation (SIFF), an organisation of harassed husbands.
“Although the bill recognises marital rape, this issue is a matter of serious discussion and national debate,” said S Chatterjee, member secretary, NCW.
Anticipating protest, the government is treading cautiously. A national consultation under a committee headed by home secretary GK Pillai is being held to form a comprehensive view on various proposed amendments.
However, the proposed new law, besides terming sexual relationship of a man with a wife under the age of 18 as rape, also specifies under section 376 (1) that if a man commits sexual assault even on his wife, who is above 18 years of age, shall be punished with imprisonment which may extend to three years and shall be liable for a fine.
The other proposals include making punishment for molestation more stringent. An additional section 354 (A) will be added saying: whoever strips a woman, attempts or abets to strip a woman in public place, shall be punishable for a term not less than one year, which may be extended up to seven years of rigorous imprisonment.
Penalties: For rape and other sexual assault — 7 to 10 years; for stripping a woman in public or against her will, proposed to be enhanced from 2 to 7 years; for marital rape will be three years of imprisonment with fine; for sexual intercourse with estranged wife living separately under a decree of separation, etc, without her consent, too, from 2 to 7 years
Amendments: The Indian Evidence Act is being ammended so that the character of a victim or of his/her previous sexual experience with any person does not become relevant in matters where the question of consent for sexual intercourse is the issue.