Delhi High Court has delivered a split judgement in a petition challenging an exception in IPC Section 375 that protects men, who have forced non-consensual intercourse with their wives, from criminal prosecution.
Marital rape refers to sexual intercourse with one’s spouse without the spouse’s consent. Marital rape is not a crime in Indian Jurisprudence. However, there has been growing clamour to criminalise Marital rape.
According to the NHFS-4 survey, 5.4% of women experienced marital rape in India.
- Economic independence: Lack of economic independence often deters married women to report Marital rape
- Lack of awareness: Women often do not even realise that they are victims of marital rape, as sex without consent is taken for granted in the marriage
- Patriarchy: Sexual offence is a weapon of male domination, and it is a manifestation of patriarchy.
|IPC under Section 375 defines rape as follows: A man is said to commit “rape” who has sexual intercourse with a woman under the following circumstances Against her will without her consent with her consent, but consent has been obtained because of Putting her in the fear of death when the man knows that he is not her husband but she believes that he is her husbandUnsound mind or intoxication with or without consent, when she is under 16 years of age However, the same section gave an exemption: Sexual intercourse by a man with his wife, wife not being under fifteen years of age, is not rape.|
Arguments for Criminalising Marital rape
- Against individual rights of married women (Articles 14 & 21): a married woman should have the same rights over her body as much as an unmarried woman does.
- Victims of marital rape undergo the same trauma as in the case of rape by strangers. Studies show that rape victims, either married or unmarried, undergo PTSD (post-traumatic stress disorder).
- A form of domestic violence: Sexual offence against a wife is a form of domestic violence.
- Inconsistent with other laws and Judgements:
- A husband separated from his wife (though not divorced) may even be tried for rape (Section 376B)
- Section 377 of the IPC penalises carnal intercourse against the order of nature by any man (including the husband)
- This exemption indirectly admits that the wife is the property of the Husband, which conflicts with the opinion of SC in Joseph Shine v. Union of India (2018)
Arguments against criminalising Marital rape
- Threat to the institution of marriage: The criminalisation of marital rape is often viewed as a threat to the institution of marriage, in which both spouses have conjugal rights over each other.
However, Marriage as an institution evolved over a period. New forms of marriage emerged like Cohabitation, Live-in, same-sex marriages etc. where individual choices are given primacy. The institution of marriage is no more primitive in nature, where conjugal rights took precedence over individual choices.
- Conjugal rights: Hindu Marriage Act gives either spouse in marriage the legal right to restitution of conjugal rights.
But recognition of conjugal rights to have sex with a spouse does not give a licence to rape.
- Misuse of law: Laws to protect women are often misused just like section 498 A. It is also a challenge to prove the offence.
However, Misuse of the law is not a defensive argument for not enforcing it.
Patriarchy and Religion
Religion perpetuates patriarchy through
- Sacred texts: Gender roles and the status of women in society are deeply tied to the way religious texts are interpreted. In many religious teachings, women are given the role of nurturing, caring and giving birth reinforcing gender norms in society.
- Religious organisations: Despite the widespread engagement of women in religious activities, religious leaders and those authorized to interpret religious doctrine are predominantly men. There is a conspicuous absence of women in positions of religious authority. Ex: Barring entry of women into places of worship.
- Religious laws and customs: Religion also has an influence on cultural norms that lead to unequal treatment in terms of Marriage, divorce, and succession. Ex. Customs like pind-dan in Hinduism perpetuate a false need for having a son.
GLOBAL GENDER GAP – 2021
World Economic Forum’s report on the gender gap, India’s ranking has dropped 28 places to 140, amongst 156 nations, making it the third-worst performer in South Asia, behind Bangladesh and Nepal.
|Key Dimensions||Outcomes for India|
|Political Empowerment||One-third of women are illiterate (34.2%) compared to 17.6% of men|
|Economic Participation and Opportunity||India regressed 13.5% points with a 9.1% decline in the number of women ministers.|
|Health and Survival||Discrimination – Wide sex ratio at birth gaps is due to the high incidence of gender-based sex-selective practices more than 1 in 4 women face violence.|
|Educational Attainment||One third of women are illiterate (34.2%) compared to 17.6% of men|
- Largest Gender Gap in Political Empowerment:
- The gender gap in political empowerment remains the largest: women represent only 26.1% of some 35,500 parliament seats and just 22.6% of over 3,400 ministers worldwide.
- In 81 countries, there has never been a woman head of state, as of 15th January 2021.
- Bangladesh is the only country where more women have held head-of-state positions than men in the past 50 years.
- The countries with the largest gender gaps in economic participation include Iran, India, Pakistan, Syria, Yemen, Iraq, and Afghanistan.
- It will take South Asia 195.4 years to close the gender gap, while Western Europe will take 52.1 years.
- The gender gap will now take additional time from 99.5 years to 135.6 years to bridge.
- Women continued to face economic and workplace difficulties and declining political participation.
- Future of Jobs:
- Women exhibit a larger job-switching gap in fields such as Cloud Computing (58%), Engineering (42%) and Product Development (19%).
- The trend is partially reversed in Data and Al job cluster.
Sexual Harassment at Workplace
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) is framed to provide protection to women in the workplace against sexual harassment. The Act lays down rules for the prevention and redressal of sexual harassment complaints by female workers.
Impact of sexual harassment in the Workplace
- Females don’t feel safe at workplaces.
- Drop in female labour force participation.
- Makes females leave their jobs.
- Trivialisation & normalisation of sexual harassment especially among women from poor backgrounds.
- Most women find it difficult to report sexual harassment because of stigma, fear of retribution and lack of trust in the judicial process.
- Most organisations still don’t comply with the law.
- Lack of awareness about the provisions of this act among females.
- Poor women make do and tacitly accept sexual harassment to protect their jobs.
- Powerful people use legal intimidation tactics to fend off their accusers. For example, Criminal defamation suits which can put a person in prison for two years are often misused against victims of sexual harassment willing to come out.
#MeToo movement: It was a civil society movement in 2017 where women survivors of sexual harassment started on social media about their experiences of gender-based violence.
Many women in India from the media and entertainment industry, as well as others who can access to social media in English, also used social media to publicise their accounts.
This led to public scrutiny of high-profile male figures and led to some resignations and legal action. For example, M J Akbar (Former Union Minister) and R K Pachauri, former Chairman of IPCC.
However, the movement excluded women from rural areas, the informal sector and those that do not use social media.
Salient features of POSH Act, 2013
- Casts responsibility on the employer to protect women employees from sexual harassment in the workplace.
- Compliant mechanism:
- Any employer having 10 workers, or more is required to set up an internal complaints committee for redressal of sexual harassment complaints at such entity.
- Complaints Committees have the powers of civil courts for gathering evidence.
- District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level.
- Penalties: Non-compliance with the provisions of the Act shall be punishable with a fine of up to Rs 50,000.
Other steps are taken to check sexual harassment
- She-Box: An online complaint management system to provide single window access to every woman, irrespective of her work status and occupation to facilitate registration of complaints related to sexual harassment at the workplace and for their speedy disposal. Women having already filed their complaints under POSH Act, are also eligible to file their complaints over SHe-Box.
- Amendment in Companies Act, 2013 rules to make inclusion in company reports a statement about the compliance with POSH Act.
Issues with the implementation of the POSH Act
- Legal shortcomings in the act:
- Powers of civil court have been given to Internal Complaints Committee without specifying if members need to have a legal background.
- A very modest fine of Rs 50,000 for non-compliance with the act is not enough deterrent.
- Employer nominates members to Internal Complaints Committee (Conflict of Interest).
- Prior internal inquiry and mandate are misused to promote a culture of suppression of legitimate complaints to avoid the concerned establishment falling into disrepute.
- Provision of conciliation in the act treats a criminal act as a civil dispute.
- Law provides a punishing a woman if she is found to have filed a false or malicious complaint which is an entirely abusive provision intended to nullify the objective of the law.
- No data: Government maintains no centralised data relating to cases of harassment of women at workplaces, does not publicly compile and release data on how many companies and districts comply with guidelines and have committees, the number of complaints filed and the outcome of these complaints.
- Local Complaints Committee is dysfunctional: 95% of India’s women workers are employed in the informal sector. Still, Local Committees under the POSH Act have either been not formed in most districts or are not well publicised leaving women in the informal sector with no avenue to report.
- No separate provision of budget for the implementation of this act.
- Social challenges: Women are discouraged from reporting sexual harassment incidents because of fear of being forced to withdraw from work by family members.
- Digital divide: Women can file complaints through the Women and Child Development Ministry’s SHeBox, an online complaint platform for all women workers. But most of India’s women workers find it challenging to access these redressal methods, especially SHeBox, given the low number of women who use the internet in India is low.
- Focus should be on the effective implementation of the act to ensure a safe working environment for females.
- Empowering the National Commission of Women with the power to summon people and carry out independent investigations, impose fines, and search and seizure in matters of sexual harassment at the workplace.
- Awareness about the act should be increased among females and added to school and college curriculums. Discussions should be organised around these issues in civil society.
- Special attention should be given towards sectors where women are most vulnerable to sexual harassment. Ex. The garment sector, Domestic workers.
- Law needs to be made gender neutral as sexual harassment challenges can be faced even by transgender, queer and males.
- Nationwide audit of the functioning of the Internal Complaints Committee and Local Complaints Committee. Earmarking of budget for the functioning of the Local Complaints Committee.
- Publicise the recommendations of the Group of Ministers report on Sexual Harassment.
Changes proposed in law:
a) Removal of penalty for false complaints.
b) Removal of a need for conciliation between complainant and respondent.
c) Formation of Local Complaints committee should be at block or tehsil level and not district level.
d) Justice Verma committee noted that Internal Complaints Committee system should be replaced by Employment Tribunal, as dealing with such complaints in-house could discourage women from coming out.
Several acts such as Dowry Prevention Act have been passed including the most recent one the Protection of Women from domestic violence Act 2005.
Protection of Women from domestic violence Act 2005.
Definition of domestic violence:
(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
Physical abuse: means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;
Sexual abuse: includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of a woman;
Verbal and emotional abuse
- insults, ridicule, humiliation, name calling and insults or ridicule especially with regard to not having a child or a male child; and
- repeated threats to cause physical pain to any person in whom the aggrieved person is interested;
- deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to 5, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;
- disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and
- Prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.
Who can register the case?
Any person who has reason to believe that an act of domestic violence has been, or is being, or is likely to be committed, may give information about it to the concerned Protection Officer/police.
Who is a Protection Officer?
The Protection Officer is the person in charge to assist women to avail of these facilities as well as assist them in obtaining the appropriate order under the Act. Protection Officers can be either government servants or social workers working for women and child welfare, with a post-graduate degree in Humanities or Law. One or more Protection Officers are appointed within the jurisdiction of each Judicial Magistrate.
Duties and functions of Protection Officers:
- to assist the Magistrate in the discharge of his functions under this Act;
- to make a domestic incident report to the Magistrate, in such form and in such manner as may be prescribed,
- to ensure that the aggrieved person is provided legal aid
- to maintain a list of all service providers providing legal aid or counselling, shelter homes and medical facilities in a local area within the jurisdiction of the Magistrate;
- to make available a safe shelter home,
- to get the aggrieved person medically examined
- to ensure that the order for monetary relief under section 20 is complied with and executed.
Act provides relief to aggrieved women in the following ways:
- The magistrate may pass a protection order in favour of aggrieved women restricting the respondent ( accused Male) from committing any act of domestic violence or any other harm to the victim.
- The magistrate can restrict the accused from entering the shared house.
- The magistrate may provide monetary relief to the aggrieved person
Duties of Government:
- The Central Government and every State Government shall take all measures to ensure that—
- the provisions of this Act are given wide publicity through public media including television, radio and print media at regular intervals;
- periodic sensitization and awareness training on the issues addressed by this Act;
- effective coordination between the services provided by concerned Ministries and Departments dealing with law, home affairs including law and order, health and human resources to address issues of domestic violence is established and a periodical review of the same is conducted.