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A Far Fetched Feminist Demand

By Sushmita Verma

06 July, 2015
Countercurrents.org

Being from a social science and research background and having worked in a women's rights organisation that works for securing legal rights for underprivileged and marginalized women, I always found law and issues of social justice standing at the crossroads with each other.

And more recently, in the context of the debates on marital rape in India. Almost everybody, regardless of having a background of feminist jurisprudence or having done a subjective or objective evaluation of the gendered laws, have deemed themselves fit to comment on this, and in no small manner. Why? Because we are speaking of marital 'rape'. We have always valorised 'rape' over all the forms of violence that women from marginalized, oppressed and underprivileged backgrounds go through on a daily basis.

Our demands for law reforms have mostly been a reaction to an external event, a knee jerk response rather than based on research findings, and ground realities. When a 'Nirbhaya' happens, we march in protest and demand reforms in law. Otherwise women's rights, their economic, political, social and cultural rights are far from public discourse.

There is no doubt that the recent comments by the Minister of State for Home, Haribhai Parathibhai Chaudhary, that concept of marital rape can not be applied in the Indian context as marriage is treated as a sacrament (29th April 2015 ), are absolutely preposterous and deplorable and need to be criticised. However, another comment by the same minister made on 3rd March 2015 on the Section 498A of the Domestic Violence Act, that the government is proposing to dilute the section ( which basically defines cruelty in domestic violence cases ) has not gained as much attention. This only indicates that we have failed to see the connection between marital rape and domestic violence and consider the former as outside the purview of latter and hence necessitating a unique treatment.

Many eminent Indian feminists have urged the government to delete the exemption granted to husbands under Section 376 of the IPC(Indian Penal Code) on the ground that “a rape is a rape whether within or outside the marriage”. Great. But whose purpose does such a demand serve ? Women stay in abusive relationships for years for fear of losing the economically viable husband. We have seen, fought and read about cases where the mother of a child (who faced sexual violence for years in the hands of the father) turns hostile in the courtroom for fear of losing economic security and community shaming.

Demanding an amendment in the IPC section on rape while our own anaysis of the Domestic Violence Act which covers civil remedies like protection and shelter as well as relief from sexual violence etc., have remained an unfinished agenda; is not a solution.

Every day, two to three women who have been rendered homeless by their husbands or his violence knock at the doors of agencies like Majlis or Awaz e Niswan* in need of support and relief. A shelter home may sound like a fancy term but it has evolved as a collective response to the experience of violence faced within the territory of 'home'. In these grim situations, what are the chances of securing conviction even if these amendments in the Crimincal procedure are introduced? Or do we just want an amendment to satisfy our progressive egos of wanting to 'do' something, every single time such a comment is made?

We did that during the campaign against dowry deaths. While domestic violence was the most common occurrence, we demanded punishment for dowry related violence and subsequent death. So even though the Domestic Violence Act was enacted in 2005, the police refuses to register a complaint( FIR ) unless one adds the allegation of dowry to it.

While one in three married women face domestic violence routinely, we are not able to secure conviction in most cases of domestic violence registered under Section 498A, where the woman is alive. Only in cases where the women have died there are conviction, that too punishment under S.498A is given as a lesser option than convicting under graver offence such as dowry death (S.304B) or abetment to suicide (S.306)

This is the irony. A woman has to die in order for it to be proven that she was facing domestic violence. In these circumstances, when the provision for filing a complaint under S.498A for domestic violence has come into attack by various forces, and as feminist legal rights groups we are trying hard to ward off this impending dilution, suggesting that the rape law needs an amendment to include marital rape appears rather farfetched from both a real evaluation of the DV Act as well as the process by which laws are enacted .

Recently an article appeared in The Hindu, titled “Where even rape is legal” dated 18th June 2015. While the solidarity and concern shown by authors is appreciable, the claim made in the article that,“ DV only constitutes mental and physical violence and sexual is out of its purview” is located far in oblivion. S. 498A defines cruelty to wives as an offence, especially in the case of marriage where lines between different forms of violence can not be clearly drawn. ( For example, man showing a video of himself having sex with other women or children may amount to both emotional and sexual violence ). This claim has also overlooked recommendations of the 243rd report of Law Commission of India (LCI) regarding the failure of police and lawyers to act ethically as well as emphasis placed on the need to retain the S. 498A; and judgments like Lalita Kumari vs. State of Uttar Pradesh, where the constitutional bench ruled that when a woman's complaint discloses that a cognisable offence has been committed, it is mandatory for the police to record an FIR.

A balanced perspective on this issue comes from feminist lawyer and activist Flavia Agnes. In an article published in Economic and Politcal Weekly (June 6), titled, ‘Section 498A, marital rape and Adverse Propaganda’ Flavia Agnes gives a more nunaced understanding of the situation. She says that, “Faced with this dismal situation, the need of the hour is to salvage Section 498A from the shackles of adverse propaganda of “misuse” by the media, goaded on by men’s rights’ groups from urban and privileged classes, and restore it as a viable law to protect victims of all types of domestic violence—physical abuse, mental harassment, sexual violence and dowry-related violence, and not view any of these as violence of a higher category warranting special intervention. This does not need a legislative intervention, but a change in attitude at all levels—the police, the media, the judiciary, and the government functionaries.

The need is also to link the provisions of the civil law of Domestic Violence Act to the criminal provision if the situation so warrants, so that the woman is simultaneously awarded protection, maintenance, shelter and support. Such a campaign will yield greater results and will become a viable option for sexually violated women than introducing marital rape by deleting the exemption provided for husband under Section 376, IPC, just because it has become a fashion to make such a demand.” Such a solution keeps the interests of the victim at the centre while simultaneously suggesting to initiate criminal procedures against the man if the need be so.
Of course, this is not to imply that we should not demand amendments in laws but it would be criminal to do so without doing a factual as well as subjective evaluation of the use and misuse of the gendered laws that are already prevailing.

Feminist jurisprudence was an important outcome of the feminist movement. But in our zeal, we should be careful of what we are demanding and that how the victim or survivor will gain from such an amendment. In my opinion, the interest and the social context of the victim or survivor has to be at the centre of all such demands. And it is in this context that the right implementation of all laws dealing with domestic violence is important.

And all those so zealously enraging about marital 'rape' should first acknowledge marriage itself as a violent institution, an institution that has perpetrated immense violence on women for years, an institution that helps in maintaining the casteist nature of the Indian society, an institution that has ensured the historical subjugation of women. Little concessions are 'given' to women within the realm of marriage but these do not do much to dismantle the overall structure of patriarchy. Marriages are far from sacred, infact this posturing has immensely harmed the autonomy of women in this institution and even those who are outside it. Stigma and shame are attached to the institution of marriages and family because of which women are not able to walk out from the institution itself.

Women do not live in their vaginas and hence feeding into the mass rhetoric of sexual violence being graver than other forms of violence that women endure, we, as feminists contradict our own arguments. While demanding law reforms we need to prioritise civil remedies like shelter homes, healthcare, counseling which provide an alternative strutcture to the women. Strong campaigns to salvage the DV Act from impending dilution would be a parallel step. Only then can we demand other amendements within the act itself. Moreover, the bigger question that we need to answer would be, whether the normalization of domestic violence is okay with us while we raise a certain kind of violence to the pedestal ?

*Majlis is a women's legal rights group while Awaz e Niswan works with minority women on issues of violence and more. Both are based out of Mumbai, India.

Sushmita is an independent researcher, writer and artist. She is the executive committee member of Committee for Protection of Democratic Rights( CPDR ). In the past, she has worked with Majlis Legal Centre, a women's rights organization in Mumbai.
Twitter handle : @Sushmitav1

 


 

 





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