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Legal Literacy

The ‘Legal’ Rape in India and Its Dilemma

A man forcing a woman to have sex is legal in India, on one condition – the man should be the husband of the woman. The first part of the previous sentence shocks the readers. Few people do not hesitate deciding that the man is to be called a rapist. But, on reading the condition, a majority of those very people say, ” How is this possible. He is the husband of the wife. He has all rights to do anything to his wife in bed”. This is the typical mindset of the Indians. This has become a burning issue in the recent days.

The Case of Asha

Asha was 18 years when she married. Hers was a love marriage. Just like everyone, she had dreamt about the bliss of marriage and waited for that big day. After that big day, as days became weeks and weeks became months, she started to see the true colour of her husband. He not used to force her to have sex with him even when she was not prepared for it but also started to physically assault her during the act and after, and also derived the sadistic pleasure out of it. In spite of all this, she clung to her marriage because she could not support herself. She did take the first bold step and filed a domestic violence case in 2007. Later, in 2015, she was rushed to the ICU with serious injuries on her private parts, which was analyzed to be inflicted during sexual assault. India has many such Ashas who do not report such incidents. They fear breaking off their marriage or the law enforcing authorities do not interfere or report as this they call “A matter between husband and wife.” (The Hindu report)

What is Marital Rape?

“Rape” is defined as ” (typically of a man) force (another person) to have sexual intercourse with the offender against their will.” (Oxford Online Dictionary). Rape after marriage is termed ” Marital Rape”. Here, either the wife or the husband is unwilling to have sex but the other person forces to have sex with him / her. This can happen with or without the consent of the unwilling person. The consent is usually forced. Plus, this is not only confined to forceful sex but also takes form of violent harassment causing great damage to their bodies, especially their private parts.

Where does this begin from?

  • Marriage is considered a legal outlet for the sexual desires in societies like India.
  • So, children, especially boys grow up witnessing that the mother is inferior to the father and she should abide by his will, irrespective of her opinion.
  • These very children grow up, explore their sexuality through various non-scientific sources like pornography and have sexual fantasies. They are unable to find a ‘subject’ to ‘experiment’ these fantasies on. Luckily they avoid approaching strangers and wait till they get married. ( refer the first point).
  • Once married, all the desires they have suppressed for years flow out and makes them crave for sex, irrespective of the other person’s opinion. This is the genesis of Marital Rape.

Why does this happen?

  • Are men more interested in sex than women? Debatable. But in societies like India, men have more liberty to express their desires whereas women are not encouraged. So, even if a woman is interested more, she hesitates to express it, even to her husband.
  • But men consider marriage a license to sex and are taught that his wife is his own property which he can ‘use’ as he wishes to.
  • The tradition of India which assigns the role of submissiveness to the wife to her husband.

What do the statistics say?

In cases as these, it is difficult to exactly obtain statistics because cases of marital rape are very rarely reported. Women are not even aware that this is wrong, even within the boundaries of marriage. There are very few statistics available.

The Legal Dilemma

Article 21 of the Indian Constitution assures any human being, irrespective of gender and marital status “Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law”. But in reality, a wife does not  typically entitled to this personal liberty, not at least in the bed room.

Article 375 of the Indian Penal Code, which defines rape has a clause which states “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” This means that if the wife is above the age of 15 and is she is forced to have sex with her husband or husband commits sexual offence on her, she does not have a proper legal resort. The constitution does not recognise marital rape.

The first clause of the Article 376 of the Indian Penal Code, which defines punishment for rape summarizes thus – a man who raped a woman is liable for punishment of imprisonment for a period between 7 – 10 years, unless the woman is his wife and not younger than 15 years. If she is his wife older than 15 years, he is to be punished for a period up to 2 years with or without fine. This causes ambiguity where the punishment for a man who raped a woman depends on the fact if she is his wife or not.   

Article 498(1) of the Indian Penal Code summarizes that if a woman is subjected to cruelty by her husband or relatives of her husband, they will be imprisoned for a period of up to two years with or without fine.

The problem here is that the Constitution does not recognize marital rape. This discourages women from reporting it. Even if they report it, the law enforcing authorities do not file them for the same reason.

The Legal Battle

Various pro-women organizations have been demanding the deletion of the deletion of the exemption mentioned in the aforementioned Article 375 and criminalize marital rape. They say that a woman is a human being and rape is a rape, be it by her husband or by another man. Marriage cannot be a license for a man to have lesser punishment for the same crime.

The Government argues that the recognition of marital rape destroys the sanctity of a marriage which is a sacred institution. Moreover, this can be used by women to harass their husbands who may be innocent.                              

What Lies Ahead?

Some High Courts have already ruled out a possibility of deleting the concerned clause of the Article 375 as this will cause in the creation of a new crime, which is the work of the legislature. They also feel that this will destroy the sanctity of institution called marriage. The case is pending in the Supreme Court.

Why Should Marital Rape Be Criminalized?

Humans have been evolving through the ages. There was once a time when cannibalism was practiced and promoted by the Governments. Now the whole human kind is against cannibalism and it is an offence everywhere in this world. There was once a time polygamy and polyandry was legal. Now, most of the democracies have prohibited both. So, the evolution of laws have been aiming at the betterment of the human race. The criminalization of marital rape is just another step in making the lives of women better and livable.

Marriage is a sacred institution which is found on the promise of security, trust and loyalty to each other. It is a tradition that the seven steps taken during the marriage makes them partners for seven lives. It is not moral or humane for one of the partners to dominate the other and consider the other as his commodity. Everything in a marriage life should be shared between the spouses, even dignity and respect. In fact, those are the very founding pillars on which the roof of love is built. On this roof, the building of physical and psychological bliss and the progeny as well as happy years of marriage is built. It is indeed a crime to break a promise given to a person who with all trust and love, comes to live with her husband with a  lot of dreams in her shiny eyes. A woman has to be considered a living human being with all flesh and blood. It should be understood that even she feels pain, even she has feelings and she is definitely not a commodity to be used when needed.

What Are We Supposed To Do?

At the present moment, it is difficult to say whether marital rape will be criminalized. That is the work of the courts and the legislature. There are quite a lot which we as common people can do.

  • Give quality and frank sex education to our children which should indeed be age appropriate, so that our children do not turn to the non-scientific sources which portray violent sexual content.
  • Educate our sons to treat women equally and respect them. They should not be encouraged to view women as objects for sexual pleasure.
  • Encourage women to come out of their shells and report any such incidents.
  • Equip women with knowledge about laws so that they become confident enough to approach court when their rights are violated.
  • Empower women so that they become self sufficient so that their livelihood does not come in the way of their reporting such incidents.
  • Educating the masses so that it changes the attitude of the society towards single women and sexual assault victims. The society should be taught to empathize with such victims instead of stigmatizing them.

Sources:

  1. http://www.indialawjournal.org/archives/volume2/issue_2/article_by_priyanka.html
  2. Article 21 in The Constitution Of India 1949
  3. Section 294 in The Indian Penal Code
  4. Section 376 in The Indian Penal Code
  5. The law on rape | IndiaToday
  6. SC says marital rape can’t be considered criminal: Tradition doesn’t justify assault, child marriage – Firstpost
  7. http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&do_pdf=1&id=586

Image Source : http://racolblegal.com/marital-rape-and-indian-perspective/

Author: Ms. Nayana M R

Categories
Legal Literacy

All You Need To Know About Euthanasia And The Procedures To Execute It

Life is very unpredictable, isn’t it? No one can tell what happens to you the next moment. There are many cases where a person hale and healthy in this moment will slip into coma or some state where the chances of recovery is minimal. This stage which is a thin line between life and death is very agonizing both to the patient and their family. In most of the cases, the patients are alive, only through vital processes like breathing, weak pulses, etc. who is not at all conscious which clearly show that the person is surviving only on life saving systems, but for them the person would be no more. This state is a very big burden on the middle and lower middle class, not to mention poor families because the charges of these lifesaving systems cost more than their monthly or probably annual salary. Having a close on in such a stage is already a trauma. This financial burden just adds to that and they will be in a helpless situation, without even a single ray of hope of recovery of the close one. Here was the dilemma between continuing the medical aid or not. It would be a waste of resources (including the financial resources of the family) and it would become a murder if the life support systems were withdrawn.

Thankfully, the Supreme Court came to the rescue of such people and recently gave its consent to passive euthanasia wherein terminally ill patients with no hopes of recovery can be let to die with dignity by withdrawing the life supporting system. It also recognized that the Right to Live with Dignity also includes ‘smoothening’ the process of death.

The Apex Court also laid down rules guiding the drafting of Advance Medical Directive (living will) and administering passive euthanasia both in the presence of a living will or its absence.

Here are a few details on how these Advance Medical Directives work and how passive euthanasia is administered.

Advance Medical Directive – Living Wills – Choice of Life or Death

Advance Medical Directive is a will that can be written by a healthy person who is fully capable of taking conscious decisions directing in case he/she falls terminally ill and slips into a stage where he/she is incapable of making decisions as to how long the treatment could continue and when is the treatment to be terminated.

Who can draft Advance Medical Directive?

  • An adult full aware and fully capable of making conscious decisions and can comprehend and communicate the reason for drafting such a document.
  • It should voluntary – not to be forced upon the person by anybody.
  • It should be in writing and should clearly specify as to when the treatment has to be withdrawn or when the process of treatment causing slow death should be withdrawn.

What Should be included in Living Will?             

  • It should clearly mention under what circumstances the medical aid should be withdrawn.
  • Instructions should be clear, unambiguos and with no space for any doubt.
  • It should mention whether the patient can revoke the instructions and authority.
  • It should mention that the person clearly understands the consequences of this will.
  • The patient should clearly mention the name of a trustworthy close relative who, in case the person is incapable of taking decisions, can take decision regarding the withdrawal or continuation of the medical aid.
  • If there are more than one Advance Directives, the most recent one will be considered.

Procedure for recording the Living Will

  • The patient should sign the living will in the presence of two witnesses (preferably independent) and counter signed by the Jurisdictional Magistrate (First Class) (JMFC), so designated by the concerned district judge.
  • The witnesses and the JMRC should testify that the statement was recorded voluntarily without any coercion by anyone.
  • The JMRC should preserve one copy of the document with himself and send another copy of the same to the Jurisdictional court to preserve in the records.
  • The JMRC should inform the immediate family members about the document and make them fully aware of the execution of the document.
  • The JMRC should send one copy of the same to the local Municipal Corporation or Panchayat, whichever applicable. The authorities should nominate a competent official to be the custodian of the document.
  • One copy of the document should be handed over to the family physician.

Execution of the document

  • When the patient becomes terminally ill, the treating physician, when made aware of the document, should confirm the document from the JMRC before acting upon it.
  • The document should be executed only after confirming that the patient is terminally ill, has no possibilities of recovery and/or is suffering from an incurable disease.
  • The treating hospital must constitute a board of doctors consisting of the head of the treating department and three experts from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology of at least twenty years of experience who have to visit the patient in the presence of the close relative or guardian and look into the issue and decide whether the document can be executed or not.
  • Then, the hospital medical board certifies that the document ought to be executed and the Jurisdictional collector should be informed about the proposal.
  • The Jurisdictional Collector will constitute another board consisting of the Jurisdictional Medical Officer as the head and three expert doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry, oncology.
  • The chairman of the board constituted be the Collector should inform the JMFC about the execution of the document before withdrawing the medical treatment.
  • The JMFC has to visit the patient and, after examining all aspects, shall authorize the execution of the decision of the medical board.

What if the Board refuses to permit the execution of the document?

There are various reasons why the board refuses to authorize the implementation of the document. Whatever be the reason, the treating hospital and the guardian or the close relative of the patient have all the rights to approach the high court if they are assured that their case is strong.

The concerned Chief Justice shall appoint a bench of justices to look into the matter and decide.

Is Euthanasia a legal murder and/or suicide?

Euthanasia, though in the onset, seems to be taking life away from a person (or oneself) which can either be termed a murder or suicide. But it is to be noted that the patients who are terminally ill and their relatives die every single day both due to pain and expenses. When there is no sign of recovery, this will be the ultimate resort of theirs to attain peace and salvation. However, old people applying for euthanasia where they are not at all terminally ill and are in a condition to take conscious decision and still want to ‘legally’ kill themselves, would amount to suicide, because they are yet to live. A piece of advice to them is to life their lives fully and as Alfred Lord Tennyson says, “Drink life to the lees”.

This should not be seen as a legal provision for murder or suicide. This is a means to uphold the dignity of life, extending it to dignity of death and with less pain.

Sources:

  1. https://www.hindustantimes.com/india-news/passive-euthanasia-how-a-living-will-or-advance-medical-directive-can-be-implemented/story-cJuTTBeq14DKWyCUMH3FcI.html
  2. https://www.legalbites.in/euthanasia-in-india/
  3. https://www.sbs.com.au/yourlanguage/punjabi/en/article/2017/08/31/euthanasia-debate-heats-victoria

Author: Ms. Nayana M R