Treat marital sexual abuse as rape: Court

Source: TOI

NEW DELHI: A victim of marital sexual abuse should be treated as a rape survivor, a trial court has held while denying bail to a man accused of sodomizing his pregnant wife. The court lamented that there were no laws to protect survivors of marital rape but said such a victim cannot be discriminated against just because she is the wife of the sexual aggressor. 

Pushing the envelope to apply section 377 of IPC, which deals with 'unnatural sex', to relations within marriage, additional sessions judge Kamini Lau said sexually abused wives had every right to getting help and protection from the state. 

"Legislatures are yet to take serious note of rampant marital sexual abuse which women suffer silently ... but that does not mean that a battered wife who has been sexually abused and has invoked the legal system of our country is not entitled to any state assistance just as help is available to other victims of sexual abuse," judge Lau said. 

Refusing to grant bail to the man, the court noted that the extent of his mental perversity was demonstrated by the charge that he went to the extent of polluting the mind of his nine-year-old son by boasting to him about the unnatural sex he had with the victim. 

Judge Lau directed the Delhi government to take responsibility of the woman, a resident of Keshav Puram, who has accused her husband for allegedly forcing her into 'unnatural sex' after consuming alcohol, even when she was pregnant. 

"She is the responsibility of the state and is required to be taken care of just as any other victim of aggravated sexual assault and abuse and the state cannot abdicate its responsibility and she cannot be discriminated only because she happens to be the wife of the sexual aggressor," the judge said. 

Time and again, activists have demanded that laws to be amended to protect survivors of marital rape. But even after the Nirbhaya assault, when laws dealing with crimes against women were made stricter, marital rape was not made a criminal offence. The law offers some protection to minor victims of marital rape but rape of a wife above 15 years of age is not punishable. 

Statistics paint a disturbing picture about the condition of married women in our country. According to the UN Population Fund, more than two-thirds of married women in India, aged between 15 to 49, have been beaten, raped or forced to provide sex. 

Marital rape is illegal in countries such as New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Russia and Poland. It is also an offense in 18 states in the US and three in Australia. A survivor of marital rape in the country can get some relief by filing a case against her husband under 498A IPC (husband subjecting his wife to cruelty). However, the section doesn't clearly define the term cruelty and carries a maximum punishment of three years and fine. 

Judge Lau also slammed the police for its shoddy investigation into the case and rebuked it for not invoking section 498A (husband or his relative subjecting woman to cruelty) of the IPC on the man even though there were specific allegations that he used to harass and mistreat her since the time they got married. Terming the police's approach as "shocking", the court expressed displeasure over the deputy commissioner of police (northwest Delhi) showing "total lack of concern regarding court cases". 

"Sensitivity and required departmental response is totally lacking. Needless to day, the investigation so far has been seriously lacking and highly non-professional and there is every possibility that this non-serious approach is solely on account of the fact that the accused is the husband of the victim," the judge observed. 

During the bail hearing, the woman had come to the court pleading that her husband be released as she was in a state of destitution, being totally dependent upon him and there was nobody to look after her. The court, however, said the woman was present before it despite her advance stage of pregnancy and this showed that she was under extreme pressure of her in-laws with whom she was staying. 

"At this stage, his release is neither advisable nor warranted. Merely because the victim now wants the accused to be out does not mean that the court is obligated to oblige,"judge Lau said. The court directed the joint commissioner of police (range) to intervene and ensure that an inquiry relating to psychological assessment and financial destitution of the victim is conducted and also sent a copy of its order to the police commissioner.