We live in a world that’s trying to be more and more Equal, more and more progressive, more civilised, giving utmost importance to Human Rights. India for the last three decades has time and again brought laws strengthening and enhancing the safety, security, liberty and rights of women in the country through special laws, provisions, schemes & even reservations.
Existing Laws in India
Married Indian Women have laws like 498A of Indian Penal Code to criminally prosecute their husband and his entire family for physical and mental cruelty that causes danger to her life, limb or health, IPC 509 to criminally prosecute husband and his family for verbal abuse, IPC 377 to criminally prosecute husband for forced unnatural sex, IPC 354 to criminally prosecute husband for any sexual aggression, Protection of Women from Domestic Violence Act (PWDVA) that recognises physical, verbal, financial and sexual abuse granting right to restraining orders, protection orders, financial maintenance, residence rights and more, CrPC 125 under which she can demand maintenance and Alimony and several more provisions under the laws to take recourse for any sort of marital abuse. A married woman can also file rape case against husband if he forces himself upon her after separation where the separation doesn’t necessarily have to be by a court order.
Even though we have so many laws, India is now at the cusp of bringing one more provision to safeguard rights of married women – the law for Marital Rape. Heated arguments are being heard on a daily basis at the Delhi High Court as exception granted to husbands granting immunity from charge of rape is scrutinized at the anvil of constitutional rights of women. Exception contained in IPC 375 – the section that defines the offence of rape in India – states “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”. It is this exception that has been challenged by RIT Foundation, All India Democratic Women Association and two individuals. Opposing the striking down of this exception are Delhi Government, NGO Hridaya Foundation and Amit Lakhani & Ritwik Bisaria of Men Welfare Trust. While the petitioners are vehemently asking for the exception to be struck down, defendants are arguing that there already exist provisions under criminal and civil code providing remedies to a married woman against sexual abuse.
Human Rights Violation – Only for Women, Not for the Men?
India is among few countries in the world that do not explicitly recognise marital rape and there is an increasing demand to do away with this exception calling it violation of human rights of a woman. Human rights however cannot be limited to one gender alone, nor can their violation be seen from a gendered perspective. Bringing law for marital rape isn’t a black and white issue in India. There are endless greys including how rape is defined in India, extremely wide definition, statement alone of a woman sufficient evidence to register a criminal case, burden of proof shifted on the man in case sexual intercourse is proven and woman says she did not consent, medical evidence and circumstantial evidence having no value at the time of institution of offence, right of a woman to deny medical examination and much more. These complexities coupled with how existing women centric laws have been misused in the country make this issue much more complicated than what the world understands.
I have been working with falsely accused men since a decade now. In my documentary film “Martyrs of Marriage” on misuse of IPC 498A, I have showcased how false allegations of dowry and domestic violence have destroyed endless families in India, leading thousands of men to suicide. More than 3 million men and women have been arrested under this law alone in last two decades with 85-90% of them not found guilty post trial. In 2005, Supreme Court termed misuse of dowry laws as “Legal Terrorism.” Judgment after Judgment, misuse of IPC 498A has been documented by various courts of India. In 2014, Supreme Court passed guidelines against immediate arrest of husband and his family members. Despite these guidelines about 900000 men and women were arrested under 498A from 2015-2020. Till date I have not heard a single woman going to jail for lodging a false 498A. In fact, in several cases, Supreme Court of India has asked a husband to pay alimony to his wife despite acknowledging that she filed a false 498A case against him and was cruel to him.
“Every Law Can Be Misused”: Common Argument
Due to documented history of misuse of women centric laws, one of the most common concerns against Marital Rape Law is that of false accusations. Even though it is a legitimate concern, it has been damped down by petitioners and even the presiding bench hearing this PIL saying “every law can be misused but it cannot be a ground not to bring a law.” This argument looks fair at the face of it. But ground realities cannot be ignored while bringing a new law if we are truly concerned about equal rights of every citizen. While the petitioners have put forth laws from different countries strongly making a case of criminalization of marital rape, they have failed to look at the strong consequences these nations have against perjury, false accusations and wrongful incarcerations. Something which is almost absent when it comes to prosecuting women who file false cases in India.
On 5th February 2022, a court in Delhi granted bail to a man accused of rape by his brother’s wife after he had spent almost a month in Jail. The rape case was filed in January by his sister-in-law, seven years after leaving the matrimonial home and fifteen years after starting the matrimonial litigation. She had filed two 498A, domestic violence complaints before but never uttered a single word about sexual assault by this man in any of her previous complaints. She did not state any date, any time, any place of the alleged incident and still the police arrested the man immediately merely on her words.
In December 2017, 31-year-old Arvind Bharti ended life leaving 23-page suicide note in three different places, documenting torture by his ex-wife Richa. He first spent 8 years fighting a false dowry case by her and when he was trying to marry again after taking divorce, paying alimony as agreed upon by her, she implicated him in a false rape case saying “tum mera nahi hua to kisi aur ka bhi nahi hone doongi (if you are not mine, I will not let you be of anyone else)” He was jailed for 15 days without any evidence against him whatsoever. In his last words, he wrote that police, judiciary and law is handicapped in front of women, a man becomes criminal as soon as he is born and he will not get justice even in his death. He was perhaps right. For about a week, police did not even file an FIR against Richa, until many people like me protested.
In January 2022, a court in Ahmedabad acquitted a man from rape charges. He was being tried for rape of a 34-year-old woman for “rape on false promise of marriage” who was not only his live-in partner for a year but had married three times, divorced none of her husband, filed criminal cases against two of her husbands and implicated this man for rape. Of course, the judge gave no punishment to her for levelling false rape charges. In 2019, as per national crime records bureau – 51% of reported cases of rape in India were that of rape on false promise of marriage – that is cases where after break up, woman claimed that her consent for sex was obtained on promise of marriage. Such cases have been reported after relationship between the couple for 6 months, 1 year, 2 year and sometimes even 10 years. With just one statement that the consent was obtained over a promise, thousands of men are languishing in Indian Jails in cases of consensual sex turned into rape whether the man made any promise of marriage or not. A woman’s statement alone is sufficient to land a man in Jail whether he has committed any crime or not. Such provision doesn’t exist anywhere in the world.
After the Arnesh Kumar vs State of Bihar judgment passed by Supreme Court in 2014 providing relief to husbands against arbitrary arrest by police, allegations of sexual abuse have made way into FIRs in matrimonial disputes, in order to ensure arrest of husband and his family. Complaints filed in such disputes now are a hybrid mix of allegations of dowry and domestic violence against entire family, unnatural sex case against husband, rape case against father-in-law and molestation case against brothers in law. In Martyrs of Marriage, I have shared a real voice recording where a lawyer is advising his female client to rehearse the false complaint in which she has accused her father-in-law of molestation. He says such an allegation will help them demand 5 Million Rupees in Alimony. There are cases where 75–80-year-old father-in-law have been thrown behind bars on allegations of rape by daughter in law only to extort money.
Speak Up Men
As the hearings in Marital Rape PIL proceeded, I asked men to send me stories where false allegations of sexual abuse were levelled against their relatives by their wives. I received several responses and the details shared by these husbands were shocking.
In one of the case, wife demanded INR 5 Crores (663K USD) to withdraw all cases. In another case, rape case was filed on father-in-law, molestation case filed on husband’s brother-in-law, unnatural sex case filed on husband in a marital dispute. A man who has been married for 13 years and has two children was jailed under IPC 377 because of one line allegation by his wife “he subjected me to unnatural sex” without any date or time or details around the incident mentioned. FIR in these cases is usually filed after days, months and years after the alleged incident so that medical proof has no relevance. It is often that once FIR is registered which is automatic if allegations are of sexual abuse, the wife sends copies of these to office of husband to get him ousted from job. There are thousands of cases already where sexual violence allegations have been roped in only to get the husband and his family arrested. And it’s working. Some men have spent 90 days in jail. Some have spent 6 months. These are men who would have otherwise gotten bail from apex courts had it been only a dowry case. But inclusion of sections that overturn Arnesh Kumar Judgment has been the pattern post 2014. Anyone who would question this can analyse allegations in marital disputes pre 2014 and post 2014. It can’t be that women would earlier not mention allegations of sexual violence if they were subjected to the same in their FIR just because marital rape isn’t recognised. Lived experiences are not forgotten but lies definitely mould themselves over time.
Misuse is a Big Concern if Marital Rape Law is Passed in India
What would stop any woman from not roping in allegations of rape against husband in case of marital disputes? How would a man prove he did not rape his wife if she goes and complains against him of sexual assault that he did five years ago? Police can not refuse FIR if a woman complains of rape in India. What preliminary investigation would they do to ascertain if a crime happened or not? Today, a woman needs nothing else but her statement to file a rape case. Any evidence put forth from accused side is rarely considered by police, let alone they questioning the woman on her claims. It’s FIR, immediate arrest and then jail for a long time. One would rarely hear of anticipatory bail being granted to a man accused of rape in India earlier. But now, courts are regularly doing so because there’s been gross abuse of rape laws since 2013 and it would be anyone’s guess why such allegations would not make their way into marital wars.
People have stooped to lowest lows in matrimonial disputes in India. Some women are not sparing even children and abusing POCSO (Protection of Children from Sexual Offences) law to settle scores with partners. A Delhi Court recently granted anticipatory bail to a man after his wife got the kids to file a false POCSO case against him reason being that he got to know about her extra marital affair.
We cannot blindly ape west when it comes to our systems, laws, procedures and enactments. Petitioners and one of the Judges presiding over this PIL have asked if other countries that have criminalised Marital Rape have got it wrong? Certainly not. But those countries have gender neutral laws. In India, all the gender-based violence laws are only for women. Men in India cannot file a criminal case even if they have been raped or sexually assaulted or stalked or subjected to physical or mental cruelty by wife because Indian laws do not see them as victims of these crimes. Even the Domestic Violence Act in India identified only women as victims. Countries whose laws have been referred in this petition have stringent mechanisms to root out false allegations. Those countries have upright investigative mechanisms and they also award hefty compensation if a man has been wrongly incarcerated for a crime he did not commit.
Innocent Men Spend Years In Jail In False Rape Cases: Human Rights?
In March 2021, Vishnu Tiwari, hailing from a very poor family in a remote village in Uttar Pradesh, India was found innocent in a rape case filed on him twenty years ago. He languished in Jail for 20 years. Court concluded that the charges were filed against him by the woman because of a dispute. This man went behind bars when he was just 23 and came out at 43. He didn’t even know what a smart phone is. Vishnu wasn’t given any compensation by the Court. In May 2017, Bombay High Court refused to grant any compensation to Gopal Shetye a man who spent 7 years behind bars because of being wrongly identified as the perpetrator in a rape case. He had sought compensation for the injustice done to him but court apparently didn’t find any merit in his demand. Prince, a young boy from Sampla, Haryana was falsely accused in a POCSO case when he was just 18. He spent 5 years behind bars before the court declared him innocent and observed that there were technological evidences that proved he was miles away from the place of incident and was falsely implicated. Despite this observation, while the Judge apologised to him for the injustice that he suffered, no compensation was granted to him. I have made another documentary, which is yet to be released, called India’s Sons on lives of men who were falsely accused of rape and their struggle to reclaim their innocence. Statistics show that rape laws are being blatantly abused after stringent amendments in 2013 post the brutal gang rape case in Delhi.
Criminalising Matrimonial Laws: A Tool For Settling Alimony?
What’s also peculiar in India is that in a marital dispute, entire family of the man is dragged in criminal cases to exert maximum pressure for higher sums of Alimony which the woman may not get otherwise. There have been cases where people living abroad, relatives who have never even met the couple except in their wedding, have been implicated in criminal provisions, made to do rounds of courts, their passports impounded, warrants issued for merely being relative of a husband. Shockingly, even minors have been named in such cases if they happen to be brother or sister of a husband. In February 2022, in case of Kahkashan Kausar vs State of Bihar, Supreme Court of India quashed criminal proceedings against family members of a man as his wife had filed case against all. While calling the allegations general and omnibus, Judges observed
Incorporation of section 498A of IPC was aimed at preventing cruelty committed upon a woman by her husband and her in-laws, by facilitating rapid state intervention. However, it is equally true, that in recent times, matrimonial litigation in the country has also increased significantly and there is a greater disaffection and friction surrounding the institution of marriage, now, more than ever. This has resulted in an increased tendency to employ provisions such as 498A IPC as instruments to settle personal scores against the husband and his relatives.
Several such observations have been made about false implication of entire family of a husband by apex courts in India but the practice continues unabated. If law for Marital Rape is passed in India, it would not be an exaggeration to say that many innocent husbands and all their family members will then be roped in rape cases alleging all of them abetted the offence of Rape. The police will not have much discretion but to arrest everyone on basis of allegations.
In such a scenario, saying misuse of law is no ground not to bring a law is undermining the misery, trauma and lifelong consequences that false accusations have on an individual especially men.
Can Only Married Woman Have Right To Say No To Sex With Her Husband?
Marital Rape law in India is not just about removing an exception but assessing how laws already in place have been used, abused, perused. Protecting people from false accusations and bringing gender neutral laws is a dire need in current Indian Society. A married woman has all the right to say no to sex with her husband. If he still violates her, she has remedies under both the criminal and civil provision. Bringing a new law that could become a weapon of harassment, without any safeguards is unfair and against the spirit of justice and protection to every human being.
If we are talking about protection dignity of women, we need to also talk about protecting dignity of men against false accusations. Indian Constitution doesn’t discriminate on basis of Gender. It’s time that our Lawmakers and Judiciary also does not.
About the Author
Deepika Narayan Bhardwaj is an Independent Journalist & Documentary Filmmaker from India whose work focuses on issues of men and misuse of women centric laws.
#MaritalRape Law In India: The Greys Around An Issue Being Seen As Legal Black & White
— Voice For Men India (@voiceformenind) September 30, 2022
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