Posted on: September 1, 2020 Posted by: admin Comments: 0

Author : Aayush Avant Srivastava[1], Student at KIIT School of Law

Co-Author : Tiyasha Chatterjee[2], Student at KIIT School of Law

ABSTRACT:

The argument against marital rape, rape against a sex worker or rape against woman is simple, it does not matter whether the perpetrator is a complete stranger, a client or one’s husband of many years, forcing an individual to engage in a sexual act amounts to rape. In India, violence against women is understood as a situation supported and reinforced by gender norms and values that place women in a subordinate position in relation to men. Women are expected to culturally support a man and reproduce to take forward the family’s lineage, while a man is anticipated to go out in the world and earn money. With mindsets like these, crimes like rape become a crime of power more than a crime of passion. India has several laws to protect women from offences like rape. But the society alongwith the judiciary often fails to accommodate all kinds of women from different walks of life into the broad ambit of  “women”  while dealing with these cases. Courts and general people tend to label women as ideal, good, decent, or woman of loose character, unbecoming etc. Based on their jobs or contribution to the society. It is quintessential to understand that all women have the fundamental right to be treated equally before the eyes of law and the ability to live with dignity.

This paper aims to discuss the various loopholes and contradictions of the Indian laws protecting women from rape with a special emphasis on how the society has classified women into the textbook definitions of good or bad. It also deliberates over how these biased and discriminatory perspectives have given birth to several judgements where a woman has not been given proper justice because of the same.

Keywords: Women, rape, marital rape, Sex-workers, sexual intercourse, consent, fundamental right.

INTRODUCTION:

Swami Vivekanand rightly said, ‘Just as a bird cannot fly with only one wing, if the women are left behind, a country cannot march forward.’ The two holes in a complete whole are male and female. The strength is borne by their union which results in weakness from their separation. Each one does not have what the other has. Each completes the other, and the other finishes. The word ‘woman’ etymologically means-half male. In our Nyaya Darshan the relationship between male and female is very well illustrated by the comparison of mind and matter, which means that man and woman are closely connected as the soul and body. Therefore women should be valued.

Violence against women means women suffering overt or indirect bodily or psychological abuse. Women are affected by felonious adversity in various forms such as eve-teasing, molestation, bigamy, fraudulent marriage, enticement of married women, abduction and kidnapping, rape, harassment of women at work, beating of wives, death by dowry, exploitation of children and exploitation of elderly women etc. Nearly every woman has gained empathy and endured the feeling that she is being mistreated, trivialized, shut out, put down, humiliated, abused, mocked or discriminated against because of her gender.

Women and girls of all ages are susceptible to different types of aggression, from prenatal sex discrimination before birth to exploitation of older women and widows. Although sexual abuse affects women of all ages, the evolving essence of the relationships between women with friends and family and the various contexts where they invest time exposing women to unique types of abuse in each step of their lives.

The UN Declaration on the Elimination of Violence against Women describes ‘violence against women’ as any act of gender-based violence that drives, or is liable to outcome in, bodily, sexual or mental damage or agony to women, including danger to such acts, bullying or arbitrary deprivation of liberty, whether in public or private life. This also notes that “violence against women is a manifestation of historically unequal relations of power between men and women”

The crimes described in the Indian Penal Code, 1860:

  • Kidnapping and abduction
  • trafficking and prostitution
  • Honour Killing
  • Matrimonial Crimes including dowry or killing for dowry
  • Psychological and physical torment
  • Molestation
  • Acid attacks

The offences set out in Special Laws:

Although not all laws are gender-specific, legislation affecting women has been regularly reviewed from time to time and changes have been made to keep up with evolving society. The laws in question include special provisions for women’s rights and their health:

  • Dowry Prohibition Act, 1961
  • Indecent Representation of Women (Prohibition) Act, 1986
  • Information Technology Act, 2000
  • Prohibition of Child Marriage Act, 2006
  • Immoral Traffic (Prevention) Act, 1986
  • Protection of Women from Domestic Violence Act, 2005
  • The Medical Termination of Pregnancy Act, 1971
  • The Prevention and Protection from Witch Hunting
  • Comission of Sati (Prevention) Act, 1987
  • Pre-Conception & Pre-Natal Diagnostic Techniques Act, 1994
  • Sexual Harassment of Woman at Workplace (Prevention, Prohibition and Redressal) Act, 2013
INDIAN WOMEN’S SOCIO-ECONOMIC STATUS:

There is no question we are in the middle of a great movement in women’s history. The proof is everywhere; Parliament and courts are gradually giving ear to women’s voice. Although women, abroad, had to struggle for more than hundreds of years to secure some of their rudimentary rights, such as the right to vote, from the outset the Constitution of India acknowledged women to be at with men regarding rights. Unfortunately, women in this country are generally unmindful of their rights due to analphabetism and the patriarchal custom.

CATEGORIZATION OF WOMEN:

In culture, women are divided into the categories of good and bad consequence. Therefore, activities related to the attires of women are often drawn into needless controversies. The prevailing misconception that women should cover their bodies in every way to escape ‘unrestricted eye,’ which is interpreted in a negative way and also contributes to an indecent classification of a woman. Therefore, women who do not follow this rule are viewed as ‘immoral’ and ‘westernized.’ It is believed that women must deck up in ‘sarees’ as they are conventional, in order to be recognized as part of the larger society. The bulk of the population therefore still harps about gender pigeonhole, which reflect that the primary function of women in society orbit around the domestic domain.

The endowment of women to the state is constantly discerned in the private room, in terms of household tasks. Men versus women is related to private versus public. While men are predicted to work in the public sphere and provide their families with economical assistance, women are supposed to perform home chores and provide their families with cultural and emotional help, making them fall into the category of a decent, respectable, moralistic woman. A ‘traditional’ Indian often has to adhere to her spouse’s wishes, which mostly culminates in sex labor. Women are expected to devote themselves to the ‘internal’ sphere of life, even though they are permitted to get knowledgeable nowadays. However, women’s education still has limitations as opposed to men’s education. It is not anticipated that women would be more literate than men, as this may lead to a social inequality within the patriarchal structure. Women who revolt against this misogynist system and improve themselves well above the glass ceiling laid down by society are often seen as disrespectful to society or a woman to poor character.

There are women today who are seeking to abscond from their cages and accord to the job market. These women are not regarded as ‘proper’ social members, as they diverge from their conventional roles. It makes them a bad woman, automatically. Along with corporate industries, the state constantly seeks to keep women at home, enforcing pregnancy laws on them, and setting lower rates of wages. Society tries to pass on the idea that women who set out of the household cage should participate in these ‘flexible’ jobs so that they can devote more time to their ‘actual’ household work.

Activities such as becoming friends with men and drinking alcohol are considered ‘untowardly’ on the part of ‘chaste’, ‘traditional’ women and are categorized as women of “loose morals”. The larger society presents ‘westernized’ women as extroverted and unrefined, as opposed to Indian women who are expected to hide behind walls and abstain from doing any ‘manly’ activities that could ‘demean’ their social status.

Over the years, the courts and the society have left no stones unturned, to categorize women into their idea of good or bad. For instance, in Rakesh B vs State Of Karnataka[3], the accused was granted anticipatory bail as the Judge wrote in his order that it, “is unbecoming of an Indian woman; that is not the way our women react when they are ravished.” as a description to make it seem like the woman was not of good character or the act was not rape just becase she fell asleep. Also, in the Tukaram v. State of Maharashtra[4] case, The Supreme Court declared that there was no rape because the body of Mathura showed no outward signs of abuse; hence there was no resistance to the act, and it was a “peaceful affair.” So as to negate the whole act of rape because the woman did not show resistence and that is not ideal. To shine some light on the aforementioned statement, it is important to look into two very broad situations in which the judiciary is failing to protect its women despite several sections of various acts providing that protection. The following two situations are:

  • Marital rape which aggrieves a woman who is apparently decent, ideal, moralistic and a good woman
  • Rape of a sex worker which aggrieves a woman, who, in the eyes of the society is indecent, characterless and not moralistic. Therefore judged to be a bad woman.
MARITAL RAPE:

In the Indian legal system, rules concerning rape are laid down in IPC sections 375 and 376. In this context, there is only one exception in section 375 which talks about rape of wife by her husband. In other words, Law has permitted the husband to rape his wife without State interference. That is a completely irrational and unjust clause. If the wife is married to a person, her husband has been assigned all the rights and the wife is helpless. In India, the idea of marital rape is the incarnation of what we term an unexpressed consent. In India, two people are deemed to have consented to sexual intercourse as soon as they are married.

Looking at the situation through society’s eyes, a wife is a decent, respectable, moralistic person and, most importantly, a woman, and should therefore be protected from rape even if she is married under law. An overview of judicial decisions on matters historically conceived as being within the private sphere of marriage and family, however, illustrates the judiciary’s reluctance to introduce fundamental rights into this private sphere. That fictitious private sphere has been created by the judiciary where it refuses to enforce fundamental rights. It has had the phenomenon of negating the issue of whether marital rape is a violation of human rights.

In the case of T. Sareetha v. T. Venkata Subbaiah[5] and Harvinder Kaur v. Harmander Singh[6], the court had created an dense sphere known as the ‘marital sphere’ where there is no usage of constitutional or criminal legislation. The effect of this is that when rape is made out as a breach of a woman’s fundamental right, taking place in the ‘marital sphere’ ceases to apply. The Court affirmed: “Introducing constitutional or criminal legislation into the husband and wife’s ordinary domestic relationship would strike at the very heart of the relationship and open the door to limitless litigation. The domestic community is focused on the type of moral cement that unites and produces ‘two-in-one ship.’ ” The law is tremendously covetous of any intervention in marital matters and very unwilling to commit intrusion within the chamber or the safe space where the couple reside, and unless there is an absolute necessity, they prefer not to tresspass into that personal space.

In the case of Independent Thought v. Union of India[7], the rape law was found to be patriarchal and breach fundamental rights. A red flag reminds us, therefore, that the IPC and other laws that regularize marital sexual violence are of the bygone age and there is a terrible need to modify them in conformity with the period of time, today.

IPC section 375 in all likelihood is the sole provision discriminating between two groups of the same sex; married women and unmarried women. It is preposterous to have a law in which one part protects all women from sexual violence but at the same time encourages her spouse to commit marital rape of a married wife. That discrimination violates Article 14 of India’s Constitution. Exception 2, of the aforementioned section stands against very rudimentary rights of humans and is inconsistent in nature to the Protection of Women from Domestic Violence Act, 2005. And yet, it is even now clinging to a law that undoubtedly undermines the precise aim of protecting women from abuse, which has to be considered unconstitutional.

Changes in legislation and in society are concord. The toughest conflicts to overcome are India’s patriarchy, matrimony system and household structure. Almost all marriages in India are ‘arranged’ in which women have no opinion and members of the household agree to marriage on their behalf. Thus, a marriage involuntarily insinuates that a woman consents to sexual intercourse in view of the fact that women have been treated as a means of reproduction and extending the family line of descent for the longest period of time. Section 9 of the Hindu Marriage Act, 1955 which has been highly argued for a long time now, wherein a husband can, legally, demand sexual access to a wife is more commonly used against married females. That should be sufficient evidence as to how inadequate sexual consent, women have in their marriages.

In the event of such an tragic occurrence it would be exceedingly difficult for a woman to doubt the very nature of the family she is a member of. The evildoer here, in an arranged marriage or otherwise, is her own husband; There will be family interventions and reconciliations even before she files a complaint which would lead to re-victimisation.

It is not important whether the perpetrator is an absolute unknown or your husband of many years; compelling one to occupy in a sexual act adds up to rape.

When Rita (name changed), a survivor of marital rape and domestic abuse, approached the local police station, she was told that since she married him and he is her husband, she had to give in to his demands. This was when she raised the critical point that it does not matter whether the man is her husband or not, he has no supramacy to rape her, a factor that seems to be ignored our culture and government, in general.

Police sooner or later took her husband into custody, though only domestic abuse was listed in the charge sheet and not rape.

When Community Correspondent Reena Ramteke asked herabout her attempt to defend him, she said that her refusal meant nothing to him. Rita also said that her husband would thrash her and blackmail to kill her. He would attempt to make sure the children slept in the other room, but when Rita took a firm stand, he would rape her in their presence.

In the first instance, the police said that they did not want to get entangled in a marital dispute and so filed only a domestic violence case.

Since there is no law that criminalises marital rape, it made it difficult for Rita to file a case. Alongwith that, was the stigma associated with domestic and sexual abuse. The faith that marriage is a religious ritual and that the convention of the family should be shielded, are deeply embedded within the local police in Rita’s case up to Union Ministers themselves, and in most households.

In Francis Corallie Muin v. Union Territory of Delhi[8] case, the principle of the right to life in accordance with Article 21 of the Constitution has been emphasised. While in this case Article 21 assimilates the right to live with and all that supports human dignity. In a catena of cases the Supreme Court ruled that the rape offense violates the right to life and the right to live with human dignity of the survivor of the rape offence.

Another similar case is The Chairperson, Chandrima Das v. Railway Board[9]. The Supreme Court acknowledged that sexual violence is not only a crime under the Indian Penal Code but an offence against society in totality.

Under Bodhisattwa Gautam v. Subhra Chakraborty[10] the court found that rape was a sexual crime to a lesser degree than a show of malevolence to corrupt along with mortifying women. Under this the principle of marital exception, it is in violation of the right of spouse to live with human dignity. The legal system that hampers the right of women to live with dignity and offers suitable spouse to force wife to have unconsensual sexual intercourse is unlawful along these lines.

Under the case of State of Maharashtra v. Madhukar Narayan[11] the Supreme Court observed that every female has the right to her sexual privacy and that it is not available to any and every person to hamper her private space whenever and wherever he so desires. Furthermore, we can translate simply that there is a right of privacy to enter into sexual intimacy even within a marriage. So, by decriminalizing unconsensual sex within a marriage, the marital exception which teaches, harms a wedded woman’s right to privacy and is therefore illegal.

It appears that the judiciary has completely consigned rape within marriage to its gain is unrealistic or that the shame of a woman’s assault can be saved by having her hitched to the rapist.

MAJOR LACUNAE IN MARITAL RAPE LAWS:

The entire legal system relating to rape is a complete paradox. The principal legal lacunae in empowering women against marital rape are:

The judicial definition has broadened the meaning of Article 21 of the Indian Constitution by leaps and bounds, and it is within the scope of this article that “the right to live with human dignity” was decided. Marital rape clearly breaches a woman’s right to live with dignity. Article 14 of the Constitution provides for protection against State discrimination. But the exception under IPC section 375, when it comes to rape protection, discriminates against a wife. Therefore, the exception provided for in IPC Section 375 is not a fair classification. It is important to note that there are no statistics on the number of cases of marital rapes being recorded in the absence of a law, and that criminal legislation is in the Concurrent List and is being enforced by States.

RAPE LAWS WITH RESPECT TO SEX WORKERS:

The mechanisms that are set up to resolve the potential problems affecting the sex worker implicitly invalidate their dignity and their agency when making decisions on matters of their own interest. In addition, there are very narrow mechanisms for sex workers to address the disproportionate levels of law enforcement violence such as abuse, brutality, sexual assault, rape, harassment, police extorsion or abuse, neglect and psychological trauma in shelter homes. A social well-being initiative designed to recognize prostitutes as victims / survivors becomes an exercise in uprooting of consenting sex workers, extreme harassment and confinement. It is unusual to find traffickers arrested in these raids. Such sex workers’ ‘rescue’ procedure entails punching, hair pulling, violence, theft by the law enforcement officers carrying out the search.

Sex workers who have been beaten up in government health centers have reported being turned away. Due to the positioning of ‘sex work as sexual exploitation and assaults.’ Police who denies to file the FIR or inquire acts of cruelty habitually deny their right to redress.

Mainstream dialogues on Gender Based Violence in India also disregards a critical and unguarded population, female sex workers. Sex workers are either viewed as female “in need of rescue and rehabilitation” or as “criminals” as the legalities around sex work in India is vague, deeming it, neither illegal nor legal. The contradictory language of the legislations are interpreted into inconsistent judgements. For instance, around 2014 a trial court in Delhi convicted four youths for gang-raping a sex worker while, the Supreme Court in 2016[12] acquitted three people of rape charges who were convicted for raping the victim, who used to work as a house help; the victim’s roommate had disclosed that she is active as a sex-worker at night. After an alleged abduction, the survivor had charged the accused with sexual harassment and rape in a garage in Bengaluru. The Supreme Court stated that the behavior of the woman during the supposed torture is far from being a survivor of sexual violence and betrays a very non resisting and consensual state of mind. The evidence of the prosecutor must be examined as that of an injured witness whose presence on the spot is probable, but it can never be assumed that her assertion will always be treated as the truth of the Gospel without exception.

The pronouncement is sickening especially when it is observed on the good woman/bad woman dichotomy, and finds no grip on legal reasoning. The portrayal and expression of sex workers is literally absent within the ambit of Indian rape offence. Around 2013, when Justice JS Verma Committee came up with a set of suggestions to protect women and girls from gender-based violence, the report highlighted a plethora of problems, including sexual assault against women. The report briefly covered the repugnance of prostitution, but it did not argue the rights of sex-workers from harassment, beyond the definition of trafficking within the Immoral Trafficking Prevention Act.

The Committee’s suggestions were silent on the issue of consent in accordance to sex workers, leaving little legal redress for protection against sexual harassment from various perpetrators. Sex workers remain under the legal policies and legislation in India, accordingly the law is silent on the identities of prostitution and has resulted in more aggressiveness in both public areas, by law enforcement officials, and private areas, by clients, brothel keeper and partners. Also, social norms that pushes women into a binary structure, in which women are either worshiped or thrashed pervade through all systems and organizations the judicial system also writes them off as “women of loose morals”. Sadly, this mindset leaves sex workers with no representation in criminal law against sexual harassment that should be applied to them, respecting what they do for a living.

Under Budhadev Karmaskar vs. State of West Bengal[13], the Supreme Court, in its division bench, leaded by Justice Katju, obseved that Article 21 of the Constitution assures that sex workers have a right to live with dignity since they are also human beings and their problems also need to be addressed. Despite this outstanding judgment, however, it is still noticeable that the courts are incompetent in changing of the patriarchal mold while making decisions concerning sex workers. The language is always crass and reeks of bias, even though the decision is sound. Similarly, under the State of Maharashtra vs. Madhukar N Mardikar[14], it was observed that, the unchastity of a woman does not make her open to any and every person to violate her as and when he wishes. She is entitled to protect herself if there is an attempt to violate her against her wish. She is equally entitled to the protection of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard.

Therefore, it can be easily observed that the court does not fail to have preconceieved notions while dealing with rape cases against sex workers owing to their profession.

CONCLUSION:

Consequently, we can see that the society does not cease to categorize women into their moulds of good and bad. But what the issue here is, whether a woman is an ideal wife or supposedly a good woman or the woman is a sex worker, they all inherently fall within the ambit of “women” and therefore should be treated equally before the eyes of law when it comes to the question of their protection against rape. In the current state of affairs relating to marital rape, it is like a double edged sword. She has to interrogate the people she loves and respects and that in turn has an impact on the family structure. It is quintessential to interrogate such an institution of family and to illegalize the act of marital rape for the reason that it is not poles apart from when a woman is raped by an unknown rapist. Rape is rape, regardless of who the offender is and the age of the victim. The trouble lies in the dereliction to acknowledge that unconsensual sex committed by a spouse or a client is also rape and that a woman has infinite liberty on her body and her life, regardless of her marital status and her profession. And hence, in view of the same it is necessary for the Government to take stringent steps in this regard. It is of extreme importance to take steps towards criminalizing marital rape and rape against sex workers so that we can move a step forward towards the road of progress in real sense.

FOOTNOTES

[1] Aayush Avant Srivastava, student, [email protected], KIIT School of Law, BA.LLB, 5th year (2016-21).

[2] Tiyasha Chatterjee, student, [email protected], KIIT School of Law, BA.LLB, 5th year (2016-21).

[3] Rakesh B vs State Of Karnataka (2020) (India).

[4] Tukaram v. State of Maharashtra (1979) AIR 185, 1979 SCR (1) 810, (India).

[5] T. Sareetha v. T. Venkata Subbaiah, (1983) AIR 1983 AP 356 (India).

[6] Harvinder Kaur v. Harmander Singh (1983) AIR 1984 Delhi 66 (India).

[7] Independent Thought v. Union of India, (2017) 10 SCC 800 : (2018) 1 SCC (Cri) 13 (India).

[8] Corallie Muin v. Union Territory of Delhi (1981) AIR 746, 1981 SCR (2) 516 (India).

[9] The Chairperson v. Railway Board (2000) 2 SCC 465 (India).

[10] Bodhisattwa Gautam v. Subhra Chakraborty (1996) AIR 922 (India).

[11] State of Maharashtra v. Madhukar Narayan (1991) AIR 1991 SC 207 (India).

[12] Raja vs State Of Karnataka, (2016) (India).

[13] Budhadev Karmaskar vs. State of West Bengal (2011) 10 SCC 283 (India).

[14] State of Maharashtra v. Madhukar Narayan (1991) AIR 1991 SC 207 (India).

 

 

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