Marital rape in India

In this blog post, Sreeraj K.V., a student of Government Law College, Ernakulam, Kerala writes on the topic Justice for rape victims in India. This article covers certain criminal law provisions dealing with rape in India, circumstances which deprive rape victims of justice along with some present day examples.

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Rape is one of the most commonly heard terms nowadays. We hear many issues in connection with sexual atrocities against women including rape and also certain inhumane acts inflicted on her body which result even in the death of the victim. Delhi Nirbhaya case was one of the most controversial cases of the sexual violence against women. The convicts not only inflicted unbearable pain upon the victim but also haunted each and everyone’s mind. The case proved to be one of the landmark cases in this field as it resulted in various debates on the punishment of juveniles. The case brought into limelight the debate of whether rape offenders must be punished with a capital sentence or not. Recent statistics portray the popular opinion that they should be punished with capital sentencing.

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For dealing with the cases of sexual violence against women, we have the Indian Penal Code, the Criminal Procedure Code as well as certain enactments such as Criminal Law (Amendment) Act, 2013, Protection of women from domestic violence Act, 2005, Protection of Children from Sexual Offences Act, 2012 along with various other statutes which deal with the issue.[1] But there are no special provisions regarding capital punishment for offenders committing rape, depending upon the nature and brutality of the offense committed by them. Even after the Delhi case, a child of 2 years of age was brutally raped in Delhi and a child of 5 years of age was also the victim of a similar offense in her house. All such instances prove that persons committing such brutal crimes must be dealt in a way of retribution rather than deterrence or reformation.

Section 375 of the Indian Penal Code deals with the offense of rape. A man is said to commit rape when he has undergone sexual intercourse with women;

  • Against her will
  • Without her consent
  • With her consent, which was obtained under the fear of death or of hurt
  • With her consent, under the belief that she will be lawfully married to that person
  • With her consent, but when she is of unsound mind or under the influence of intoxication in such a manner that she is unable to understand the consequences of the act
  • With or without her consent, when she is under the age of sixteen

The provisions of this section were later amended by the Criminal Law (Amendment) Act, 2013, which now read as;

  • When she is unable to communicate the consent
  • For the purpose of this section, the term ‘vagina’ also includes ‘labia majora.’
  • Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates her willingness to participate in the specific sexual act.

There is a question that arises at this point of time, why India? Rape is not a unique act in this sub-continent, but the scale in India is of a whole new level. Experts in this field state that it is because of the marginalization of the female when compared to the male. This is very true in poor homes where she receives less nutritious food, and females are forced to leave their schools and college early so that they can continue with domestic work at home.[2] This situation is seen mainly in the rural areas of our country.

Now, looking into various issues faced by the victims of rape, even after the victims suffer all possible physical and mental torture and harassment, the society treats them in such a manner that they are isolated from the community and in certain cases, they are prohibited from going outside and are forced to stay within the four walls of their home. This is because Indian people give utmost importance to the dignity of their family in the society instead of protecting the dignity of women themselves.

Problems faced by rape victims

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  • Deprivation of right to life and personal liberty
  • Forced to undergo uncomfortable procedures and inquiries both inside the court as well as from the people outside.
  • Ostracized by the society and at times, prohibited from right to education as well.
  • Exploitation by media and the people concerned by making her a public figure.
  • Interference of various political parties into the matter or changing it as a political issue.
  • Deprivation of the victim from certain rehabilitative and aftercare treatment.
  • Delay in the trail proceedings which results in delay in delivering justice.
  • Delay on the part of investigating agency in finding out the real culprits.

These are only indicative, and there are many more problems which a rape victim faces. For instance, in the case of Sooryannelli rape which shocked the people of Kerala, the government as well as the judiciary. In this case, the victim who was just 16 years old, underwent brutal sexual violence subjected by around 40 persons and the Court, due to lack of proper evidence, acquitted a majority of them. The girl is still facing problems from certain people and is being exploited by the media as well.  For now, the case is being appealed in the Supreme Court.[3] Not just in this case but also in a majority of rape cases, justice for the rape victim is not provided at the fullest. It is mainly due to lack of effective investigation by the agency concerned, lack of production of proper evidence in the court and also due to the interference of political parties to a certain extent. We have also heard about the incident were Sharanya, a poor village girl of Kerala was brutally raped and killed by Govindachami. Even though the court awarded capital sentence to the culprit, the sentencing proceeding is still pending. This states that the judiciary, which is capable of providing effective decisions, is unable to follow up and see if the decision is being properly enforced. Recently there is yet another case of a young law student who was brutally raped and killed in Kerala. It was stated that the crime was much more brutal than that of Nirbhaya. At first, the investigating agency as well as the Government was not so serious about the case, but due to the continuous protests by various student organizations as well as other women welfare forums, the case gained public attention, and the police have looked into the matter seriously.  In this context, it has to be mentioned that India has changed into a place where there is a lack of protection for women even in her own home.

Conclusion

At this point of time, it has to be stated that we are responsible for the current situation in which a girl is not even safe in her home. Police, government, and media have to look into the matter in a much more serious way so that apart from benefitting themselves, such machinery must look into the matters of the common people so that people need not gather at streets for protests. It is the responsibility of the government and law enforcing agencies to make sure that each and every citizen is safe in this country, and it is up to the media to look after the cases involving infringement of the rights of the people rather than building controversies. There must be a change in the attitude of the society so that when a girl is alone, it must not be an opportunity to others but rather a responsibility of others to look after her safety. Changes must be made not only in the laws but also in the mindset of the people so that rape victims will no longer be victimized.

Footnotes:

[1] Retrieved on: https://en.wikipedia.org/wiki/Rape_in_India

[2] Retrieved on:  http://www.ibtimes.com/rape-india-epidemic-sexual-violence-against-women-children-rape-laws-arent-enough-2157704

[3] Retrieved on: https://en.wikipedia.org/wiki/Suryanelli_rape_case

 

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2 COMMENTS

  1. Hi, i havr registered complaint in ncw.till date i didint gt any call or reply.their next process includes settlement and discussion with the culprit.its an unnecessary step..if its serious it should directly goto police.i gone through ncw because police dont take FIR easily..i am pissed off..culprit is roaming in front of my eyes from last month..i should take some action instead of depending upon police lenghty procedures..

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