Source: You should’ve asked
Source: Confessions of a “One of Us”
The focus of this post is to see sense in the much delayed, yet, much needed societal reforms in banning advertisements of astrological services and remedies, as done by Maharashtra and being contemplated by Karnataka. Astrology is not a faith, it is founded on and thrives off faith, it is staunchly propagated as working for people who believe in its sanctity and miracle prowess. It works purely on emotionally manipulating somebody, reassuring them of ‘destiny’ or the factor that every act, is definite, foreseeable; ergo, fixable. From charting out the course of a lifetime based on the time of birth and planetary positions at the time (or counting stars) it sets out to determine every important event in a person’s life. How the planets manage to do anything at all to people, why would they be concerned in the first place, how ridiculous it sounds, has been well answered. Why does the government need to step in or why are a section of people crying hoarse for an intervention in the propagation of astrological remedies as life fixes, is what needs an answer.The chasm exists between the sections of society, one which comes with certain privilege, of exposure to advanced education, liberal thought processes, opportunities to communicate, with like-minded people; and the other, which clings on to faith as a resort of emotional support. It never was, nor is an urban-rural divide. It is as simple and as rigid as a person’s unwavering religiosity or masked religiosity in the name of spirituality. They are not immune to reason or logic, literacy, or even a specialized education in science does not encroach on the personal consciousness.Reason, logic and science, and faith exist in alternate unmixing universes for them. One does not imply the absence of the other. It isn’t a problem of illiteracy or the need of the educated, liberated to sweep in to rescue the poor, uneducated people. Belief sytems trickle down from majoritarian practices, what hindu practices have come to be. Brahminical establishment of beliefs in godmen and women, men educated in the Vedas with powers to bless and guarantee everything from jobs to babies, is now an epidemic across religions. It works as a parallel science, with citation of an anecdote, and spreads by hearsay, the prowess of the brahminical thought multiplies.
At the risk of sounding over simplistic, it is a matter of a contractual promise, purely commercial exchange, in which the consumer needs to be protected from fraudulent or unfair trade practices. Modern hindu astrology sells fixes for losses in business, marital discord, not being able to get married, sickness, academic lacunae, bad houses, bad karma, bad bosses, temperamental pets, you-name-it. It is an aggressively commercial setup, hinged on the faith factor. The advertisements are made studying the demography they cater to, for businessmen who are overnight millionaires, dutiful wives and mothers concerned for their family’s prosperity, well being of their children, etc. affluent and poor alike. Seeping patriarchy is just a side effect of this. The advertisements are timed for slots with maximum viewership for maximum impact (sales).The main poison it spreads is a unanimous promise of fixing every contemplatable issue in the viewer’s life, subscribed by ‘real life wonders’, people who have successfully used these methods. Astrological remedies are sold with the same premise as deodarants, magical powers, to get you lucky. There are no magical remedies, where by placing a picture in some particular direction and praying to a stone, five times a day, will money rain down on the consumer. It could be argued here, that people who are smart enough to know so, yet, they fall for these gimmicks, do not need any rescuing. The target demography is a mix of people who are capable of making informed decisions while there are plenty who are in unspeakable emotional distress, due to financial strains, sickness, ‘ n’ number of reasons. We cannot underestimate the emotional solace and dependance people seek from faith, however illogical it appears, it needs innovative means of countering rather than mere rhetoric from positions of privilege. The principle to be understood is twofold;
- When astrological remedy is promoted as a commercial, expansive service/good, with targeted advertising, as a sole solution, easily obtainable, it no longer is a mere matter of religion or individual impact. It effects the consumers as a whole, as in the case of insurance or pharmacy. It needs to come from regulated setups, to protect consumer interest an safety. It needs to apply the principle of Caveat Venditor, where the seller needs to acclaimatize the consumer with obvious defects in the goods, which cannot be discerened by usual methods.
- It follows from the above premise, that the onus cannot be laid alone on the consumers to be ‘smart’, the regulations of the consumer industry apply pan-commercially advertised practices. The advertisements need disclaimers (subjective, varying results, conditions for refund), advisory of individual discretion; information conducive to making sound decisions.
The case for undue influence: Exaggerated, deceptive advertising content, unsubstantiated claims, hired actors rattling scripted, manipulative language, which repeatedly asserts the powers of absolute resolution to all maladies, works on the power of suggestion and manipulation. The remedies have no proof of being effective, yet, are marketed as being a unique solution to the varied problems of a diverse group. That is analogous to the pharmacist prescribing paracetamol for any symptom of fever, it is not the pharmacist’s job to prescribe medicines, not one medicine cures all ailments, no matter how alike the symptoms are. Most people who turn to these remedies have diminished capacity based on pure gullibility/extreme vulnerability. Think of a mother nursing a terminally ill child, where the doctors have given up hope, she is conditioned by ‘faithfuls’ around to leave it to god, or seek remedy in astrology. It is a classic setup for pulling off such a trick, where the woman has the solace of ‘being taken care of’ by god, and a means of curing her child.
York University sociologist Julia Hemphill- astrology in the media specifically targets women:
“Astrology is an unempirical epistemology that’s peddled to women as a way of understanding themselves and the world,” she says. “All you have to do is open a ‘women’s magazine’, and you’ll inevitably see at least one or two pages devoted to astrology. The same pattern, she says, is evident in television programming for women. “While shows about ‘mediums’, and other supernatural phenomenon can be found on virtually any network whose mandate is to attract and keep the viewership of women, such shows are a rarity, if utterly nonexistent on the schedules of ‘men’s’ networks,” she says. “These networks are more likely to air shows that tend to focus on actual science.”
Magic, curative stones, talismans, obstructions in Vaastu, remedial fasts, prayers offered at designated temples, all of these are goods and services offered by astrology. The power to convince someone of a miraculous cure increases exponentially, when it is coupled with its roots in divine sanction and personal narratives. It makes the assertion that much unquestionable, as a matter of fact and of faith. While there is no physical coercion involved, the factor which influences the buying decision, the absolute emotional clouding, should be understood as impeding reasonability, a form of generating consent by undue influence.
Ban: It is most certainly not about free speech, which is a topic of luxurious ponderance and debate in privileged circles. When we speak of consumers, we speak of every person who can be influenced by a product purchase, an undefined audience. When every product, automobile to cigarettes, comes from a setup of regulated norms, because they are focal to the functioning of the competitive market, to consumers, of every strata, class and means making informed choices and not being duped, why should astrology be allowed any leeway? Generating awareness to fight a staunch belief in astrology or any offshoot of religion, sounds ideal. But, the fight is against a problem inherently loaded with personal faith, poised against not just existing ideas, but the proliferation of them, the unmeasurable ramifications, especially involving physical harm and emotional distress to a considerable section of the public. An active barrier is required to limit the damage. A ban on advertising of astrological remedies seeks to stop the wheel, to cut off one form of sanction and access to the system. Additionally, awareness may be generated by counter advertising, by myth busting but, not by a legal sanction to subverting consumer rights in a media driven market. Can the media be allowed to merely issue a non-subscription discalimer to the advertisement while freely popularizing fraudulent schemes via paid advertisements?
Aside: In the few PILs and cases challenging deceptive advertising of astrology, introduction of Astrology as a subject of specialized study by the UGC, the sole defence has usually been ‘Astrology is a science’, the centre being under the control of hindutva forces, education has been deemed a matter for academicians, not courts. And the hindutva ideology of peddling tripe as science has been blessed with legal sanction.
But, there is hope: In Astro Science Technologies & Anr. Vs. Ministry of Information & Broadcasting & Ors. Appeal under Section XLIII rule 1 r/w Section 151 CPC The main cause of action arose out of the letter issued by The Advertising Council, seeking comments regarding a complaint against TVC of Lal Kitab Amrit. In the absence of receipt of any comments, the advisory / letter was issued to the TV Channel to observe the code of conduct and TV Channel stopped the advertisement, for being misleading. The order of the ACCI is advisory in nature, compliance is optional for the television broadcaster, non compliance making them open for punitive action. The Cable Television Networks (Regulations) Act, 1995 has provided an advertisement code: Section 6 of the said Act and the Cable Television Networks (Rules) Act, 1994 has also described what is the violation of code of conduct and programme under which category can be restrained by the TV Channels under the directions / advisory of ACCI and Consumer Complaint Commission. The combined reading of Section 6 & 7 of Cable Television Network (Regulations) Act, 1995 r/w Rules 6 (j) and 7 (5)& (9) of Cable Television Network Rules, 1994 made it clear that the respondents are well competent to check the programmes and advertisements which encourages superstitious or blind belief. Rule 7 (a) of Cable Network Rules, 1994 authorized the Advertising Council Of India to issue such directions in case of violation of the advertisement code.
Kannadiga astrologer Sachinandababu was dragged to court by a dalit activist for predicting possibilities of rape/assault on women according to their zodiac signs. The episode content has been cleared off the web, but screenshots of the telecast with the scroll are widely available. The defence Sachinanda tenders, is the best example of the audacious sham astrology is and how asinine the concept of being able to foresee rape/assault is. In the context if a gruesome crime, where the focus is on legal measures to make safer spaces for women, this man, frivolously tosses around fear-mongering lies, knowing fully well, the power he wields in influencing his avid viewers. The following is an excerpt from his interview, lengthy, but single handedly undoing the foundations of astrology.
He says “The episode went on air long time back. That might be the reason its not available online. Also all episodes don’t go online. I have been doing TV shows since 2008 and have always stressed on the usefulness of astrology in preparing us to face problems. Astrology deals with all aspects of your life and I discuss these aspects. Even if I had talked about this issue I would have discussed hundreds of combinations from which one may be able to find out the possibility of assault on them.”
“A web portal has translated your Kannada versions to English. And the translations claim that the forecasts predicted that if a girl belongs to the zodiac sign Virgo, there are chances that the girl can be raped between the age of 14 and 20, near the staircase in the house. Capricorns, the forecast claims can be raped by father or mother or colleague. For Aries there is a possibility of getting raped in the bathroom. Aquaries have chances of getting raped by husband’s elder or younger brother. Can the actual predictions be taken so much out of context? Surely there is something that sparked the fire.”
“The actual text is in Kannada so the translation is not done precisely. Extreme meanings have been predicted from those words’. “I never meant/used the word ‘rape’, but only words like ‘mistreat’ which you can also mean atrocity or molestation”.”
“The show was for safety of women from astrological point of view. I was also answering the queries asked by the anchor on viewer’s behalf. Extreme conclusions cannot be drawn from a single statement. What you just asked is completely absurd; no learned astrologer would say such things on TV.”
“I remember telling my Capricon viewers to beware of outsiders, especially those close to their parents, as they might cheat them. I did not refer to parents doing any harm themselves. That does not mean rape. The text by itself does not convey the full meaning and intent.”
What about the molestation near stair case or bathroom?”That is again completely misinterpreted. Please note that astrology is not fortune telling or tarot card reading. It is entirely based upon the horoscope of a person which is prepared according to one’s time, place and date of birth. It requires years of study and experience.”
He goes on to recommend chanting mantras and vibhooti and turmeric as alternatives to pepper spray to ‘ward off’ evil.
A recent trend of comments by persons in positions of power blaming women for dressing provocatively and ‘inviting’ rape has delivered a fresh blow to the cause of women in the country. We would like to condemn such statements in the strongest of terms and register our protest against persons in influential positions making vile statements which reek of insensitivity and irresponsibility.
Section 375 of the Indian Penal Code defines‘Rape’ to be unlawful sexual intercourse by a man,
- with his own wife under the age of 15 years or,
- with any other woman under the age of 16 years, with or without her consent or,
- with any other woman above the age of 16 years, against her will, without her consent or ,
- with her consent , when her consent has been obtained by putting her or any person in whom she is interested in fear of death or hurt or,
- with her consent , when the man, knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or bel ieves herself to be lawfully married or,
- with her consent , when at the t ime of giving such consent , by reason of unsoundness of mind, or intoxicat ion, or the administ rat ion of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent .
The very definition of rape incorporates in itself the essence of the crime, the absence of consent. Rape is a non-consensual violent act which means to humiliate, subjugate and terrify the victim. It affects the victim’s body and mind, subjecting them to immense physical and psychological scarring. It is the most contemptible and heinous offence possible. Rape is not a statistic-strata-class-genre-type based offence. A rapist targets the infliction of harm on the body of the person, not their clothes, family background or behaviour. A woman from any walk of life, in any profession (including sex-workers), fully clothed or not, walking alone or not, married or not, with child or not, without distinction, could be a victim of rape, but, under no circumstance can she be said to have been the reason for it. A woman, at all times, is entitled to her right to give or withhold consent and anything done against her will is an offence, nothing less. The rapist is a criminal, with no condonation or mitigation plausible of the crime, and the victim could never be the trigger or the causation for the crime.
Rape is also an offence which requires the victim to be exceptionally strong to even begin to admit being raped and if at all she chooses legal recourse, she needs to be stronger while taking the insurmountable road to justice, through FIRs, identifying the offendor(s), bearing stigmatisation and providing testimony while being made to relive the horror every minute of seeking justice, which often comes too late.
Women live in a dichotomous situation within a patriarchal society where they have to adhere to male defined boundaries of safety and decorum, trusting them to be protectors while having to deal with the added, unwelcome burden of being the upholders of family honour in situations of breach of their personal rights. Women are ferociously guarded by men in families and communities in all aspects of social interaction because they are considered incapable of being independent; and needing monitoring. Yet, in cases of rape, when the protectors become the perpetrators, subscribing to a notion that the woman could have possibly predicted or controlled the crime seems to become an easy explanation however impermissible by logic. It also covers the need and embarrassment for the society and the police to sit up and admit failure in protecting or assisting women in situations threatening their life, liberty and dignity. It also sadly and shockingly, suggests that the rapist deserves some sympathy because the woman put him in a situation where he could only succumb to temptation, and the woman should share the blame, if not take it totally and allow aspersions to be cast on her character and intentions. It binds the woman in more chains of responsibility for her own safety as well as the breach of it while letting off the rapist for being helpless before temptation, making the victim the offendor. It is an unacceptable statement on the society, its apathy and basic understanding of how this crime is a power tool in the hands of the rapists to assert power, show contempt and scar a woman for life; also highlighting lack of measures to suitably address the issue of protection of women.
In this scenario, misogynist comments, promoting blaming the victim, are not mere social gaffes, retractable at will, but vile statements defiling the character and humanity of an entire gender. They are defamatory, made in denial of the fact that women are equal human beings, equal participants of this democracy, equally protected by the Constitution of this country and also holders of the same fundamental freedoms enjoyed by the men. They are entitled to roam the streets, dress as they please, speak and interact and enjoy all the privileges as men, in the same quantum of liberty. Misogynist statements made by people in powerful positions, especially men, such as ministers and police personnel are patriarchal echoes of shoddy reasoning and gender intolerance while being extremely dangerous because such notions being propagated from public platforms, coming from power-wielding men, they are deemed to influence opinions and imply sanction, now that the plausible explanation is made available. When there are sections of the society fighting for a sea change in outlook and policies for women, such comments are a huge setback to the efforts. Every woman is entitled to safety, life with dignity, liberty and the State is equally responsible for the protection of each and every woman in its territory, without exception.
The merest reference to any sort of responsibility attributed to the woman in being the victim diminishes the gravity of the crime by promoting a conditioning within the society and especially the perpetrators; to hold women accountable for their safety from wrong-doers with a hollow and ridiculous excuse for debilitating transgressions of their bodies and suggests some sort of willingness on part of the victim to be raped in the tone of “asking for it”. It shifts the accountability, quite ironically, from the perpetrator to the victim and dilutes the seriousness of the crime and the outrage caused to the victim.
Irresponsible statements inimical to women, promoting a culture of shame and silence, or worse, asking them to be ‘more responsible’ should be taken note of and strongly dissuaded and if repeated, be punished with disciplinary action against the speakers to instill a sense of responsibility that comes with the power in position.
Every indian owns a piece of public property. Thats how the government provides social security here. Every indian has the birthright to use the road as if it were rightfully handed down as ancestral property. Yes, only Indians have this right, foreigners are generally too shaken by our bold personalities to try it, they stick to the sidelines.
Indians like to make bold and signature statements. So, every biker drives like he is a stunt driver. With dogged speeding as the road runer, but the attention span of a goldfish, this mysterious creature whooshes, stops in the middle of a buay junction and cuts across lanes to make a turn, leaving the others in a cloud of horrified beffudlement. Nothing else would explain the dying hurry and kkrish-like maneuvers through potholes, sometimes through, sometimes over people walking in close range on footpaths. Pedestrians either willingly give way or are taken along to be jolly sidekicks. The bikers very kindly honk their brains out too, even on the footpath and a dirty look by some antiquated pedestrian who is alien to this new world custom, is met with even more disturbingly loud honking.
Pedestrians too, have a funny way of slowing down time in congestions. The people out for veggie shopping and the girls and boys out for socializing pace themselves slower than turtles, mistaking the walk ‘to the park’ to be ‘the stroll in the park’. And it is only natural to be hit in the eye with someone’s tossed hair, clothing accessory or stray peanut, or get elbowed in your solar plex by that teenager stepping out of the store taking a phone call. Or you could be unfortunate enough to be there when he/she wishs to open their vehicle’s door.
Vehicles. Those monsters human kind created to make life simple. A two laner road is always, unfailaingly used as a four laner. One for parking/roadside shops, the other for to and fro and the third for the spillovers. Which basically results in traffic jams. A to- car wishing to turn meets a fro-car going straight, neither expecting cyclist to meet them midway. And the world comes to a stand still. Pile ups and incessant honking later, the cyclist magically weaves himself out of the mayhem and is off and peace returns to the road, till another cyclist taking his mate for a little ride threatens to go off balance and the scooterist going alongside jumps his lane for fear of safety and meets fro-car head on. And then, we have the indian need for instant justice. Both get off and meet to yell and threaten police action right where their vehicles met. in the middle of the traffic junction. The traffic constable is on his way, from some paan-bidi shop, will be there in no time.
The squatters, roadside shopkeepers selling everything from chinese torches to shoes take up as much of the footpaths or unpaved road space they find, making it almost impossible to miss their wares even if you are in your car. So when at a redlight, you can get you fruits or get off the local train and you can be submerged in a world of shiny lights and wares. But fight you must, the people desparate to get home after a long day, the old uncle or aunty inching their way home, all those who want to take away your rightful space on that footpath where you must stand to test, scrutinize and haggle. So adopt the self defence tactic and put your hands on your hips, jutting your elbows out, or keep moving forward and backward, every oncomer will be dodged for sure.
There was a time when stray cows and dogs were blamed for traffic snarls. Not anymore. Many have met their end, the others stand quietly by the liberal spatterings of garbage dumps, where if they were to jump in a close call, they would have a soft landing. The interstate buses and trucks like majestic elephants trumpet their passage and ensure everyone does their bidding, the drivers tending to underestimate the sizes of their vehicle and feeling the urge to speed like the wind.
The indian traffic authority has also been smart, their genius pearls like “speed thrills but also kills” and “someone is waiting for you at home” are put up along the highways, people will atleast read them there. In urban traffic, people get by with miracles.
Marital Rape and the Indian legal scenario
Priyanka Rath seeks to bring out the laws regarding rape in India while concentrating on the position of marital rape and its recognition as an offence by the system and the attitude of the society and the judiciary towards marital rape.
Marital Rape refers to unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent. Marital rape could be by the use of force only, a battering rape or a sadistic/obsessive rape. It is a non-consensual act of violent perversion by a husband against the wife where she is physically and sexually abused.
Approximations have quoted that every 6 hours; a young married woman is burnt or beaten to death, or driven to suicide from emotional abuse by her husband. The UN Population Fund states that more than 2/3rds of married women in India, aged between 15 to 49 have been beaten, raped or forced to provide sex. In 2005, 6787 cases were recorded of women murdered by their husbands or their husbands’ families. 56% of Indian women believed occasional wife-beating to be justified.
Historically, “Raptus”, the generic term of rape was to imply violent theft, applied to both property and person. It was synonymous with abduction and a woman’s abduction or sexual molestation, was merely the theft of a woman against the consent of her guardian or those with legal power over her. The harm, ironically, was treated as a wrong against her father or husband, women being wholly owned subsidiaries.
The marital rape exemption can be traced to statements by Sir Mathew Hale, Chief Justice in England, during the 1600s. He wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.”
Not surprisingly, thus, married women were never the subject of rape laws. Laws bestowed an absolute immunity on the husband in respect of his wife, solely on the basis of the marital relation. The revolution started with women activists in America raising their voices in the 1970s for elimination of marital rape exemption clause and extension of guarantee of equal protection to women.
In the present day, studies indicate that between 10 and 14% of married women are raped by their husbands: the incidents of marital rape soars to 1/3rd to ½ among clinical samples of battered women. Sexual assault by one’s spouse accounts for approximately 25% of rapes committed. Women who became prime targets for marital rape are those who attempt to flee. Criminal charges of sexual assault may be triggered by other acts, which may include genital contact with the mouth or anus or the insertion of objects into the vagina or the anus, all without the consent of the victim. It is a conscious process of intimidation and assertion of the superiority of men over women.
Advancing well into the timeline, marital rape is not an offence in India. Despite amendments, law commissions and new legislations, one of the most humiliating and debilitating acts is not an offence in India. A look at the options a woman has to protect herself in a marriage, tells us that the legislations have been either non-existent or obscure and everything has just depended on the interpretation by Courts.
Section 375, the provision of rape in the Indian Penal Code (IPC), has echoing very archaic sentiments, mentioned as its exception clause “Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape.” Section 376 of IPC provides punishment for rape. According to the section, the rapist should be punished with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine unless the woman raped is his own wife, and is not under 12 years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to 2 years with fine or with both.
This section in dealing with sexual assault, in a very narrow purview lays down that, an offence of rape within marital bonds stands only if the wife be less than 12 years of age, if she be between 12 to 16 years, an offence is committed, however, less serious, attracting milder punishment. Once, the age crosses 16, there is no legal protection accorded to the wife, in direct contravention of human rights regulations.
How can the same law provide for the legal age of consent for marriage to be 18 while protecting from sexual abuse, only those up to the age of 16? Beyond the age of 16, there is no remedy the woman has.
The wife’s role has traditionally been understood as submissive, docile and that of a homemaker. Sex has been treated as obligatory in a marriage and also taboo. At least the discussion openly of it, hence, the awareness remains dismal. Economic independence, a dream for many Indian women still is an undeniably important factor for being heard and respected. With the women being fed the bitter medicine of being “good wives”, to quietly serve and not wash dirty linen in public, even counseling remains inaccessible.
Legislators use results of research studies as an excuse against making marital rape an offence, which indicates that many survivors of marital rape, report flash back, sexual dysfunction, emotional pain, even years out of the violence and worse, they sometimes continue living with the abuser. For these reasons, even the latest report of the Law Commission has preferred to adhere to its earlier opinion of non-recognition of “rape within the bonds of marriage” as such a provision may amount top excessive interference with the marital relationship.
A marriage is a bond of trust and that of affection. A husband exercising sexual superiority, by getting it on demand and through any means possible, is not part of the institution. Surprisingly, this is not, as yet, in any law book in India.
The very definition of rape (section 375 of IPC) demands change. The narrow definition has been criticized by Indian and international women’s and children organizations, who insist that including oral sex, sodomy and penetration by foreign objects within the meaning of rape would not have been inconsistent with any constitutional provisions, natural justice or equity. Even international law now says that rape may be accepted as the “sexual penetration, not just penal penetration, but also threatening, forceful, coercive use of force against the victim, or the penetration by any object, however slight.” Article 2 of the Declaration of the Elimination of Violence against Women includes marital rape explicitly in the definition of violence against women. Emphasis on these provisions is not meant to tantalize, but to give the victim and not the criminal, the benefit of doubt.
Marital rape is illegal in 18 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia. Rape in any form is an act of utter humiliation, degradation and violation rather than an outdated concept of penile/vaginal penetration. Restricting an understanding of rape reaffirms the view that rapists treat rape as sex and not violence and hence, condone such behaviour.
The importance of consent for every individual decision cannot be over emphasized. A woman can protect her right to life and liberty, but not her body, within her marriage, which is just ironical. Women so far have had recourse only to section 498-A of the IPC, dealing with cruelty, to protect themselves against “perverse sexual conduct by the husband”. But, where is the standard of measure or interpretation for the courts, of ‘perversion’ or ‘unnatural’, the definitions within intimate spousal relations? Is excessive demand for sex perverse? Isn’t consent a sine qua non? Is marriage a license to rape? There is no answer, because the judiciary and the legislature have been silent.
The 172nd Law Commission report had made the following recommendations for substantial change in the law with regard to rape.
‘Rape’ should be replaced by the term ‘sexual assault’.
‘Sexual intercourse as contained in section 375 of IPC should include all forms of penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal.
In the light of Sakshi v. Union of India and Others [2004 (5) SCC 518], ‘sexual assault on any part of the body should be construed as rape.
Rape laws should be made gender neutral as custodial rape of young boys has been neglected by law. Sexual crimes against the other gender would also go unrecognized under our twisted legal provisions, when the status on their freedom’s in doubt, abysmally.
A new offence, namely section 376E with the title ‘unlawful sexual conduct’ should be created.
Section 509 of the IPC was also sought to be amended, providing higher punishment where the offence set out in the said section is committed with sexual intent.
Marital rape: explanation (2) of section 375 of IPC should be deleted. Forced sexual intercourse by a husband with his wife should be treated equally as an offence just as any physical violence by a husband against the wife is treated as an offence. On the same reasoning, section 376 A was to be deleted.
Under the Indian Evidence Act (IEA), when alleged that a victim consented to the sexual act and it is denied, the court shall presume it to be so.
The much awaited Domestic Violence Act, 2005 (DVA) has also been a disappointment. It has provided civil remedies to what the provision of cruelty already gave criminal remedies, while keeping the status of the matter of marital rape in continuing disregard. Section 3 of the Domestic Violence Act, amongst other things in the definition of domestic violence, has included any act causing harm, injury, anything endangering health, life, etc., … mental, physical, or sexual.
It condones sexual abuse in a domestic relationship of marriage or a live-in, only if it is life threatening or grievously hurtful.
It is not about the freedom of decision of a woman’s wants. It is about the fundamental design of the marital institution that despite being married, she retains an individual status, where she doesn’t need to concede to every physical overture even though it only be her husband. Honour and dignity remains with an individual, irrespective of marital status.
Section 122 of the Indian Evidence Act prevents communication during marriage from being disclosed in court except when one married partner is being persecuted for an offence against the other. Since, marital rape is not an offence, the evidence is inadmissible, although relevant, unless it is a prosecution for battery, or some related physical or mental abuse under the provision of cruelty. Setting out to prove the offence of marital rape in court, combining the provisions of the DVA and IPC will be a nearly impossible task.
The trouble is, it has been accepted that a marital relationship is practically sacrosanct. Rather than, making the wife worship the husband’s every whim, especially sexual, it is supposed to thrive on mutual respect and trust. It is much more traumatic being a victim of rape by someone known, a family member, and worse to have to cohabit with him. How can the law ignore such a huge violation of a fundamental right of freedom of any married woman, the right to her body, to protect her from any abuse?
As a final piece of argument to show the pressing need for protection of woman, here are some effects a rape victim may have to live with,-
Physical injuries to vaginal and anal areas, lacerations, bruising.
Anxiety, shock, depression and suicidal thoughts.
Gynecological effects including miscarriage, stillbirths, bladder infections, STDs and infertility.
Long drawn symptoms like insomnia, eating disorders, sexual dysfunction, and negative self-image.
Marriage does not thrive on sex and the fear of frivolous litigation should not stop protection from being offered to those caught in abusive traps, where they are denigrated to the status of chattel. Apart form judicial awakening; we primarily require the generation of awareness. Men are the perpetrators of this crime. ‘Educating boys and men to view women as valuable partners in life, in the development of society and the attainment of peace are just as important as taking legal steps protect women’s human rights’, says the UN. Men have the social, economic, moral, political, religious and social responsibility to combat all forms of gender discrimination.
In a country rife with misconceptions of rape, deeply ingrained cultural and religious stereotypes, and changing social values, globalization has to fast alter the letter of law.
Originally published in http://www.indialawjournal.com/volume2/issue_2/article_by_priyanka.html
The article above had been published in 2009.
Sadly, despite several repeated horrors of rape and drives to bring about changes in the law to protect women from rape, we continue to let this institution maintain a sanctimonious facade and the women subject to rape within marriage.
Where do we draw the line before the lines between logic and outrageous are blurred.
How can we be selective about where we need to protect individual rights? Despite Justice Verma’s recommendations for reforms in this law, we continue to believe marriage is a holy cow, protected by antiquated and oppressive mindsets, where women are still seen as property and sex within marriage is a law bound duty.
Is this what we want our children to learn?