May 01, 2015

What Indian Criminal Law Says of Marital Rape

The law does recognise marital rape. The concern is that the law does not adequately recognise marital rape as a crime. Under civil law, the Protection of Women from Domestic Violence Act, 2005, recognises sexual abuse as a form of domestic violence and, consequently, it recognises marital rape as a legal wrong, Under criminal law, the Indian Penal Code, 1860 (last amended in 2013), recognises the possibility of a man raping his wife only to promptly clarify that such rape within a marriage would not generally be considered to be rape for the purposes of Section 375 of the IPC which defines the offence of rape.

‘Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape’ reads the second exception to Section 375 of the IPC. In essence, a wife who is not under 15 cannot be raped as far as this Section is concerned. If the IPC Section were to be read in conjunction with the Protection of Children from Sexual Offences Act, 2012, (or POCSO as it is called), it is possible that the law could be interpreted to make the rape of a wife between the ages of 15 and 18 a criminal offence through Section 42A of POCSO. However, there is at least one occasion on which a Delhi Court appears to have refrained from interpreting the law in that manner. (See State v Suman Dass, Patiala House on August 17, 2013.)

The relevant Sections of POCSO, which deal with the precedence of laws are:
42. Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 3540,370, 370A, 375, 376, 376A, 376C, 3760, 376E or section 509 of the Indian Penal Code, then, notwithstanding 45 of 1860, anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree. 
42A. The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency.

The law is not, however, completely oblivious of the possibility of a man raping his wife. A separate offence is contained in Section 376B of the Indian Penal Code which deals with the marital rape of a wife who is separated from her husband.
376B. Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine. Explanation.-ln this section, "sexual intercourse" shall mean any of the acts mentioned in clauses (a) to (d) of section 375.

Invoking Section 376B of the IPC is no easy matter though: the Section is buttressed by Section 198B of the Criminal Procedure Code which unequivocally states in relevant part: 'No Court shall take cognizance of an offence punishable under section 376B of the Indian Penal Code where the persons are in a marital relationship, except upon prima facie satisfaction of the facts which constitute the offence upon a complaint having been filed or made by the wife against the husband,'

There is a Section in the Evidence Act, Section 114A, which states that in certain prosecutions for rape, 'where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent'. This presumption applies only in very specific cases of aggravated rape (listed in Section 376(2) of the IPC such as rape by a police officer in a police station to which he is appointed) and does not apply either to rape generally or to any of the offences defined in Sections 376A to 376E including the marital rape of a separated wife. In short: with reference to marital rape, there is currently no presumption which favours women.

As such, as far as marital rape in criminal law is concerned, in effect, except in the case of the separated wife, only the marital rape of a wife under the age of 15 is explicitly a crime. The marital rape of a wife between the ages of 15 and 18 may be criminal depending on how POCSO is interpreted. And the marital rape of an unseparated wife over the age of 18 is not recognised as a crime in and of itself. It may be considered to be assault but, then again, assault is not rape.

Further, although Section 498A of the Indian Penal Code does deal with cruelty against a wife, 'cruelty' (the 498A understanding of it, anyway) is not guaranteed to consider allegations of marital rape. For example, in Crl.M.C No.1628 of 2013, the Kerala High Court stated:
"[....] Initially the Prosecution registered a case against the petitioner/accused alleging offences under Sections 376, 342 and 506(2) I.P.C. Later, when it was established that the petitioner/accused had married the defacto complainant, the offences of rape and wrongful confinement were deleted. Now, what is remaining is only an offence under Section 498A I.P.C. [....] I have carefully gone through the materials in the records which show that the predominant allegation raised by the defacto complainant against the petitioner is that he has deserted her and failed to provide maintenance to her. Absolutely no allegation of physical or mental cruelty meted out to her is mentioned in the statements. Therefore, learned counsel for the petitioner contended that the prosecution is an abuse of the process of the court. Going by the allegations raised by the defacto complainant, it can be seen at the most that she is entitled to seek relief for maintenance. However, the prosecution under Section 498A I.P.C is without any legal justification."

Marital rape may be recognised under Section 377 of the IPC as it was in the case of State v. Vinod Saini decided on March 3, 2014 by Dr. Kamini Lau in Delhi's Rohini Courts. However, Section 377 which deals with 'unnatural offences', as the statute calls them, does not contain a marital rape exception comparable to that in Section 375 of the IPC. As such, while it may be possible for a court to recognise some forms of marital rape as criminal offences if they fall within the scope of Section 377, as a general rule, statutory constraints would prevent a court from recognising marital rape per se directly.

If at all a court were to recognise the marital rape of an unseparated wife over the age of 18 under current law, it would have to do obliquely via Sections dealing with such things as cruelty, although there is no guarantee that any court would in fact do so.

(Most of the Sections mentioned in this blogpost are contained in the 2013 amendments to criminal law.)

April 19, 2015

On Making 498A IPC Compoundable and the Stats supporting the Proposal

Just how are the stats specifying the percentage of alleged misuse of 498A, IPC, being derived?!

In support of proposals to amend Section 498A, there seem to be stats doing the rounds of the number and percentage of supposedly false cases. Some time ago, ToI published a table in an article claiming that 10% of dowry cases are false. The table was attributed to NCRB, and the same figures seem to have appeared in another piece, this time attributed to a 'senior official'.

The Asian Age, too, published a piece against the proposed amendment of 'dowry law', stating that the Union Minister of State for home Haribhai Chaudhary had cited the same figures in the Lok Sabha although this statement doesn't appear to find mention in the uncorrected Lok Sabha debates of the day. The piece in the Asian Age pointed out that there's no mention of what the stats are based on; if they're based on acquittals, they mistakenly equate an acquittal with proof of the relevant case having been false.

Source: ToI, March 22, 2015

Source: ToI, April 19, 2015

Source: Asian Age, April 9, 2015



From published NCRB stats, it's unclear how it's possible to come up with any figures at all to determine the percentage of false cases assuming a 'false case' is defined as a 'case filed sans any basis'. Apart from concerns about methodology: NCRB stats only list the most serious offence where more than one offence is involved, the stats also seem to do such things as list mistake of fact or law together, as well as discharge and acquittal, making it impossible to determine what the percentage of of false cases actually is.

Sources: Table 4.3 and Table 4.9


Background note:

The desire to have 498A be compoundable is not new.

The SC though does seem to have made 498A compoundable in Jitendra Raghuvanshi & Ors. v. Babita Raghuvanshi & Anr. on 15 March, 2013 although the value of the judgment as a precedent is unclear.
"11) The inherent powers of the High Court under Section 482 of the Code are wide and unfettered. In B.S. Joshi (supra), this Court has upheld the powers of the High Court under Section 482 to quash criminal proceedings where dispute is of a private nature and a compromise is entered into between the parties who are willing to settle their differences amicably. We are satisfied that the said decision is directly applicable to the case on hand and the High Court ought to have quashed the criminal proceedings by accepting the settlement arrived at.
12) In our view, it is the duty of the courts to encourage genuine settlements of matrimonial disputes, particularly, when the same are on considerable increase. Even if the offences are non-compoundable, if they relate to matrimonial disputes and the court is satisfied that the parties have settled the same amicably and without any pressure, we hold that for the purpose of securing ends of justice, Section 320 of the Code would not be a bar to the exercise of power of quashing of FIR, complaint or the subsequent criminal proceedings."

This judgment came a year after the Law Commission report on 498A which also suggested the section be made compoundable:
2. The Commission has reiterated the recommendation made in the 237th Report that the offence should be made compoundable with the permission of the Court. There is overwhelming view in favour of making it compoundable. Certain precautions to be taken before granting permission are suggested. However, the Commission has recommended that it should remain non-bailable. The misuse (the extent of which is not established by empirical data) by itself shall not be a ground to denude the provision of its efficacy, keeping in view the larger societal interest.

October 06, 2014

The Appropriation of the Image of the Marginalised Indian Woman

(I began writing this post thinking of the portrayals of NE women by others... its scope unsurprisingly expanded in minutes.)

Take racial insensitivity. Add to it the entitlement of the upper class and, treatment in real life aside, you have all the makings of the image of the Hottentot Venus of contemporary times in far too many portrayals of the figure of the marginalised woman.

The Hottentot Venus was a person transformed into an object; she was born in South Africa in 1789, brought to England in 1810, and then exhibited on stage and in cages till her death in 1815. We know what she was turned into but we have no idea who she was. We often call her, when we deign to accord her any humanity, ‘Sarah Baartman’; of her given name, we can only guess. We believe ‘Ssehura’ may have been closest to it but can’t be sure. ‘Baartman’ or some variant may have been imposed on her upon being baptised in England in 1811. The appellation ‘Venus’ has never indicated anything but distorted nineteenth-century ideas of Black sexuality, and she is no longer believed to be a Hottentot by many. In fact, the word ‘Hottentot’ itself is now recognised as being deeply racist.

Turning women into objects of curiosity and entertainment is not a new phenomenon by any stretch of the imagination. We see it, in India too, especially in the case of women who are poor, who are disadvantaged by caste, who belong to racial and religious minorities. They often have little control over their own stories which are appropriated (and distorted) more frequently than one would like to believe by the comparatively privileged to meet their own ends: to tell stories of supposed racial and caste integration (or friction) in ‘modern’ India, to bemoan violence amongst ‘the poor’ (or against marginalised women) primarily in rural India, blithely ignoring, for the most part, that caste and class are so closely related to each other that they can, for most practical purposes, almost be used interchangeably.

Of course, there can be no argument there is little violence worth mentioning in ‘upper’ caste India. Upper class women, who complain of domestic, violence and, God forbid, invoke laws against it lie abundantly. That is, lie, until they turn up dead at which point their corpses tell stories of violence which we’d much rather ignore and usually manage to. How many articles have been printed comparing the perception of cases under Sections 498A and 304B of the Indian Penal Code, the former of which applies when wives who claim to have been abused are still alive and the latter of which applies only when wives die? And how often do we see analyses of stilted sex ratios by class? Or of rape statistics, even allowing for the fact that there exists precious little reliable data?

But then again, studies of VAW and sexism amongst the ‘upper’ caste are hardly analyses which we need see: the only time when women of the urban upper class deal with VAW, it would seem, is when they deal with street harassment perpetrated by lower class men. That such street harassment sometimes escalates into rape is another issue. And talking about issues like the pay gap only reveals that one suffers from a post-colonial complex and is importing Western feminism. Because, of course, it is the stated aim of the working Indian woman to earn a fraction of what her male counterpart earns. And economic equity is entirely independent of violence.

What is left to the upper class, then, is the image of the marginalised woman, who rarely has the privilege of voice, and whose image is available for it to enact its desire to play saviour despite often suffering from abject cluelessness. And that’s on a good day when the upper class actually has or claims to have the desire to do right by the woman. Never mind that it may fail miserably in doing so, in extreme cases possibly by (illegally) circulating the images of the poor raped woman ‘for publicity to bring pressure for justice’. Never mind that such images may demonstrate what the term ‘the pornography of rape’ means. Never mind also that such images are forgotten as soon as the next sensation takes over. They arguably serve their purpose as props, for all of five minutes, to prove credentials against VAW. (Asking upper class women if they’d like having pictures of themselves in disarray upon having been raped be circulated to further justice is unacceptable, incidentally.)

It is only the image of the marginalised woman which is up for indiscriminate use. If it isn’t ostensibly for her own good, it’s in the furtherance of liberal values such as free speech. That there is no conclusive data on what the effects of pornography are is only half the story, for example. Discussions on pornography in India have consistently focussed on the free speech right (largely of men to consume pornography) and of the likelihood of pornography causing men to rape. The right to perform in porn hasn’t come up — after all, choosing to perform in porn isn’t at issue, it’s just what some people do, especially those marginalised. And as for porn being every bit as much a labour rights issue as being a free speech issue: perish the thought. They idea that porn could easily be filmed rape is somehow irrelevant, and mentioning it taints one as being against free speech itself.

The images appropriated and exploited by the upper class are rarely, if ever, those of urban ‘upper’ caste Hindu women: they are of poor women, of ethnically marginalised women, of rural women, of ‘lower’ caste women, of women belonging to minority communities — none of whom have control over their own stories as a matter of course. And as for the urban ‘upper’ caste Hindu woman: her complicity in such exploitation aside, her own story too is rarely hers to tell — the only VAW she faces is inflicted by men who are not ‘upper’ caste Hindus, urban or otherwise. And, oh, entrenched patriarchy and structural sexism, other than that which exists across class lines, are little more than figments of the imagination.

August 29, 2014

The Discourse Surrounding ‘Love Jihad’

‘Love Jihad’ is a curious creature by any measure. The central premise — and understanding of the term upon which this piece rests — is that it considered to be a process by which Muslims as a community or significant sections thereof (as opposed to as isolated individuals) dupe Hindu women into marriage through the pretence of love in order to convert them to Islam.

The discourse surrounding ‘Love Jihad’ though is, arguably, far more fascinating than the allegations of its occurrence. To begin with, there appears to be no discourse of ‘Love Jihad’ worth mentioning; there is discourse against ‘Love Jihad’ and there are rebuttals of the discourse against ‘Love Jihad’ which usually seek to negate the existence of ‘Love Jihad’ itself.

The discourse against ‘Love Jihad’ assumes that Hindu women are susceptible to being duped and does not credit them with anything remotely resembling intelligence or individual choice, which isn’t entirely surprising given the prevalence of arranged marriages where family choices may take precedence over the choices which individuals, in particular women, may desire to make for themselves.

Leaving aside the issues of women’s agency which cut across both class and community in India though, it isn’t clear how the discourse against ‘Love Jihad’ is anything more than a means, steeped in Islamophobia and patriarchy, for Hindu men to control Hindu women by attempting to keep them from marrying Muslim men. Unfortunately, the Hindu men who seek to do so — and it must be said that they appear to primarily be a section of upper caste Hindu men — choose to accomplish their aim not by making themselves more appealing to Hindu women but by demonising Muslim men.

There is no room in the discourse against ‘Love Jihad’ where a Hindu woman may choose, entirely of her own free will and without the slightest coercion, to marry a Muslim man and then either choose to convert to Islam or choose to remain Hindu; if she marries a Muslim man, she's been duped into marriage by a man intent on converting her to Islam. There is, however, plenty of room for the possibility of a Hindu man marrying a Muslim woman without censure and with social legitimacy — this appears to rest not only on the notion of ‘shuddhi’ or, in this context, (re)conversion to Hinduism, but also on the notion that women as wives have no independent identities of their own.

The latter issue of women’s autonomy being limited is, of course, not restricted to any one community in India but in the context of ‘Love Jihad’ what it appears to amount to is: having no independent identities unamenable to being subsumed into their husbands’ identities, women’s pre-marital identities are automatically sacrificed in favour of the identities of the men they marry. With this being the basis on which women’s identities are determined, Hindu men marrying Muslim women is not an issue: the women become Hindu. But Hindu women marrying Muslim men do not remain Hindu: they become Muslim which accomplishes the alleged aim of ‘Love Jihad’. Women, Hindu or Muslim, it would seem, quite simply do not matter in and of themselves in the context of ‘Love Jihad’ — they are but their husbands’ accessories.

In practical terms, what the discourse against ‘Love Jihad’ achieves though is to create a framework within which the only people who truly have freedom to choose whom to marry irrespective of their religion are Hindu men, specifically upper caste Hindu men, if one were to factor in the inequity within Hindu society: it is these Hindu men who have the freedom to marry women of whichever faith they choose including either Hindu women (often regardless of the women's caste) or Muslim women. Everyone else, it would seem, can only marry those whom  upper caste Hindu men (and their own social circles) do not object to.

It is far from clear whether ‘Love Jihad’ actually exists at all despite the amount of pushback there has been against it. There seems to be no evidence of any form of conspiracy or masterplan to commit ‘Love Jihad’ in the form in which allegations of its existence have been made, although the lines of argument that have been used to discredit the allegations have, at times, defied understanding. As have proposed ‘solutions’ like legislating a Uniform Civil Code and doing away with personal laws — given that religious conversion is not a condition of marriage under the Special Marriage Act, it appears disingenuous to argue that ‘Love Jihad’ has been either caused or facilitated by bad laws which necessitate conversion to marry. Quite apart from the fact that conversion into any religion, where is it voluntary, should not be problematic, the bottomline is that there is no legal necessity of conversion. If at all ‘Love Jihad’ exists, it is due to a socio-cultural problem and not a legal technicality.

This brings one back to the question of its existence. If ‘Love Jihad’ exists and involves Hindu women being duped by the pretence of love, the first question which springs to mind is: How would successful ‘Love Jihad’ ever be exposed as such? It defies belief that women in love and ostensibly being loved would feel deceived by the alleged pretence of love. The determination of ‘Love Jihad’ having occurred (or not), then, must be made by a third party.

On one hand, there are those who seem to believe that any marriage between a Hindu woman and a Muslim man must necessarily be proof of ‘Love Jihad’. On the other, there are those who have, inexplicably, turned to rape statistics to confirm or disprove the existence of ‘Love Jihad’, breaking down the available statistics to attempt to determine the propensity of Hindu and Muslim men respectively to commit rape by taking into consideration their religion and ignoring not only factors such as their socio-economic marginalisation, but also, it would seem, unbelievably, ignoring the fact that data and statistics relating to rape are notoriously unreliable (especially given the sheer number of rapes which are likely unreported), and that attempting to understand violence against women solely based on crime statistics is unlikely to be an especially successful endeavour. (As an aside, it’s also interesting that the sentiment ‘Consent obtained by deception is not rape’ often heard in relation to false promises to marry coexists in public discourse with ‘But if a Muslim man obtains consent by deception, it's entirely acceptable to talk of ‘Love Jihad’ and bring up rape statistics’ even if the two sentiments are not always expressed simultaneously by the same people — small mercies!)

Coming back to the use of rape statistics: although there are grounds to suspect that there is, in general, a tendency for parents of minor daughters in India to have rape charges filed against men whom their daughters elope with, it is entirely unclear how this could help establishing whether or not ‘Love Jihad’ exists. Apart from not really taking into account adult women, it completely ignores the fact that marital rape is generally not a criminal offence in India. Once-Hindu / Hindu wives who are raped by their Muslim husbands would not be able to file criminal complaints of rape against their husbands even if they were raped which makes the choice of studying rape statistics in the context of ‘Love Jihad’ particularly difficult to understand. Not to mention that abuse (including rape) does rather undermine the premise of ‘Love Jihad’ — one would imagine that abuse and the (continued) pretence of love are usually incompatible.

That said, there is no reason to believe that there do not exist Muslim men who become abusive towards their wives if their own religious practices are not followed in much the same way that there exist Hindu men who compel their wives to follow their own religious practices, in each case with the wives being required to give up their pre-marital practices in favour of their husbands’ practices. It is, however, only in the case of the Muslim man that such abuse becomes not the story of an individual abuser — or as in the case of an upper caste Hindu man, possibly the story of a man who upholds his traditions and heritage — but the story of a community engaging in ‘Love Jihad’. There appears to be, in the discourse against ‘Love Jihad’, absolutely no differentiation between individual Muslim men and Muslims in general. The result is that where a Muslim man abuses a Hindu woman whom he’s married, an entire community is implicated in the conduct of the individual abusive man.

And this, all of this, despite there seeming to be no proof that Muslims as a community are engaging in ‘Love Jihad’ in the first place.

(This post is primarily based on tweets over the last few days.)

July 24, 2014

Jamun and the Bharany Donation

Visited the exhibition (at the National Museum in Delhi) of the Bharany Donation which a friend kindly told me of. It comprises a selection of textiles, paintings and sculptures donated to the museum by C L Bharany in 1976 in memory of his father, and is supported by some items from the Bharany private collection.

Being entirely convinced that our textiles are art too often taken for granted, I particularly loved seeing a blouse on display in a niche in the same room which houses religious texts.

...the textiles really were the highlight for me. As one of the plaques at the exhibition said, ‘The designs embroidered on the phulkaris and kanthas on view are best explained in the words of Stella Kramrisch who passionately argues for the design repertoire of women across India. “The total stock of their designs is entrusted to the memory of the women. Stitch by stitch they realize the meaning of the ground which they cover even if they are unable to explain it. This ignorance of knowledge implies a correctness of doing this, an infallibility which is evident. It results in a display, in a manifestation where everything has its place in relation to the whole.”

The exhibition aside though, it seems to be that time of year when jamun is in season, and I was fascinated to see several men, some in large groups, climb trees to shake down jamun all along Rajpath. Not one woman did so which rather surprised me; I'd have imagined that even if women didn't climb trees, there'd be some collecting the fruit. But, no, this is a man's domain, it would seem. (I didn't take photos of the large groups of men simply because I didn't want to risk having them turn on me even though there was no indication that they would...) I'm quite flummoxed by having seen no women there.