SEXUAL VIOLENCE AGAINST WOMEN: SPECIAL PREFERENCE TO MARITAL

RAPE AND FEMALE GENITAL MUTILATION

Dissertation submitted to Amity University Lucknow Campus, Uttar Pradesh in Partial

Fulfillment of the Requirement of the Award of the Degree of

B.B.A. L.L.B. (HONS.)

SUBMITTED BY:-

MADHUMITA BOSE

B.B.A. L.L.B. (HONS.)

ENROLLMENT NO.: A8121513004

UNDER THE GUIDANCE OF

MRS. ANWITA CHAKRABORTY

(FACULTY OF LAW, ALS, LUCKNOW)

AMITY LAW SCHOOL

AMITY UNIVERSITY, LUCKNOW CAMPUS, UTTAR PRADESH

MANGO ORCHID CAMPUS, GOMTI NAGAR EXTENSION, LUCKNOW

2013-2018

Page 1 of 82
 CERTIFICATE

I hereby certify that

(a) Madhumita Bose, A8121513004 Student of B.B.A. LLB (Hons) & 2013-2018 (9 sem) at
Amity Law School, Amity University Uttar Pradesh has completed the Project Report on the
topic of Sexual Violence Against Women: Special Preference To Marital Rape And Female
Genital Mutilation, during Semester 9/ Summer break under my supervision.

(b) The presented work embodies original research work carried out by the student as per the
guidelines given in University Regulations.

(c) The Research and writing embodied in the thesis are those of the candidate except where due
reference is made in the text.

(d) I am satisfied that the above candidates prima facie, is worthy of examination both in terms
of its content and its technical presentations relative to the standards recognized by the
university as appropriate for examination.

(e) I certify that in accordance with NTCC guidelines, the report does not exceed the prescribed
maximum word limit; or Prior approval has been sought to go beyond the word limit.

(f) Wherever work form other source has been used, all debts (for words, data, arguments and
ideas) have been appropriately acknowledge and referenced in accordance with the
requirements of NTCC Regulations and Guidelines.

Signature of the Faculty

Name of the Faculty: Mrs. Anwita Chakraborty

Designation: Assistant Professor, Amity Law School, Lucknow.

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 DECLARATION

Title of Project Report: Sexual Violence Against Women: Special Preference To Marital Rape
And Female Genital Mutilation

I understand what plagiarism is and am aware of the Universitys policy in this regard.

I declare that:

(a) The work submitted by me in partial fulfillment of the requirement for the award of
degree B.B.A. LLB (Hons) Assessment in this dissertation entitled as Sexual Violence
against Women: Special Preference to Marital Rape and Female Genital Mutilation is
my own; it has not previously been presented for another assessment.
(b) I declare that this dissertation is my original work. Wherever work from other source has
been used, all debts (for words, data, arguments and ideas) have been appropriately
acknowledged and referenced in accordance with the requirements of NTCC regulations
and Guidelines.
(c) I have not used work previously produced by another student or any other person to
submit it as my own.
(d) I have not permitted, and will not permit, anybody to copy my work with the purpose of
passing it off as his or her own work.
(e) The work conforms to the guidelines for layout, content and style as set out in the
Regulations and Guidelines.

Date: 13, October, 2017

Name of the Student: Madhumita Bose

Enrolment No.: A8121513004

Programme Name: BBA LLB (H)

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 ACKNOWLEDGEMENT

I wish to sincerely than all those who have contributed in one way or another to this legal
research. Words can only inadequately express my deep gratitude to my guide, Mrs. Anwita
Chakraborty, for her meticulous care, kindness and generosity. Her fruitful comments and
insightful suggestions have been a crucial formative influence on the present study. She has
supported me in every possible way since the beginning of my research. Her critical and careful
reading of my writing has saved me from a lot of errors. Without her guidance and
encouragement, my research would have never come out in the present form. I have seen in her
an unpretentious and devoted scholar. Furthermore, it has been a memorable and enjoyable
experience for me to work with her.

I wish to express my sincere gratitude to Dr. Balraj Singh Chauhan, Head of Department, Amity
Law School, for his incessant inspiration, expert guidance, invaluable suggestions, and above all,
his moral support.

Grateful acknowledgments are also due to Ms. Shashya Mishra maam for her valuable
suggestions and kind assistance for class observation.

Special thanks are due to the authorities of Amity University, Lucknow Campus, Uttar Pradesh
for awarding me an opportunity for successful completion of my BBALLB (H) course (2013-
18).

I must thank Ms. Malobika Bose, Ms. Priyanka Shrivastava, Ms. Pallavi Singh, Mr. Kaushlesh
Pandey, Mr. Abhishek Bhardwaj, and those whose names are not mentioned here for their full
support and encouragement. I also express sincere thanks to colleagues from Amity School of
Law of Amity University, Lucknow Campus, Uttar Pradesh for their encouragement. I wish to
express heartfelt love and appreciation to my dear friends for their constant support, inspiration
and encouragement.

I have no words to acknowledge my indebtedness to my parents for their sacrifices; constant

support, abiding faith and love which decisively helped me to undertake this academic journey.

My special thanks to Mrs. Anwita Chakraborty for patient proofreading and correction work.
Finally, I sincerely acknowledgment the courtesy of the authorities of library of Amity
University, Lucknow for their cooperation needed by permitting me access data and relevant
materials while carrying out the present extensive research.

Madhumita Bose

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 LIST OF CASES
A

Abbas Ahmed Choudhary v. State of Assam, (2010) 2 CrL J 2060 (SC)

Abdul v. Emperor, AIR 1932 All 580
Apparel Export Promotion council v. A.K. Chopra, 1999 1 SCC 759
Arjan ram v. The State, AIR 1960 Punj 303

Balwant Singh and others v. state of Punjab, AIR 1987 SC 1080.

Bhimrao Harnooji Wanjari v. State of Maharashtra, 1975 Mah. LI 660
Bharat v. State of M.P., AIR 1992 SC 880
Bodhi Sattwa Gautam v. Subhra Chakraborty, AIR 1996 SC 922
Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753

Chammudin Sardar v. Emperor, AIR 1936 Cal.

Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988
Commonwealth v. Fogarty

Daler Singh v. State of Haryana, 1995 Cri L.1 614 (P & H)

Delhi domestic working women s forum v. Union of India, (1995)1SCC14
Dhananjoy chatterjee v. State of West Bengal, 1994(2)SCC 220
D.P.P. v. Morgan, [1976] A.C. 182

Emperor v. Mahadeo Tatya, AIR 1942 Born. 121

Emperor v. Nur Ahmed, AIR 1934 Cal. 7

Gagan Bihari Sonal v. State of Orrisa, AIR 1992 SC 72

Gopi Shanker v. State of Rajasthan, AIR 1953 Ajmer 12
Gopi Shankar v. State, AIR 1967 Raj. 159
Gurcharan Singh v. State of Haryana, AIR 1972 SC 2661

Page 5 of 82
 Harpal Singh and another v. State of Himachal Pradesh, AIR1981 SC 361
Holman v. The Queen, (1970) WAR 2

Ibrahim v. Emperor, AIR 1927 Lah 772(2)

Jalal v. Emperor, AIR 1930 Lah 193(1)

Jaswant Singh v. State of Punjab,( 2010) 1 Cr L J 41(SC)
Jayanti Rani Panda v. State of W.B. and another, 1984 Cr LJ 1535 (Cal.)

Khalillur Rehman v. State, 1859 Cr LJ 698

Kartic Kundev v. State,1967 Cr LJ 1411
Krishanlal v. State of Haryana, AIR 1980 SC 1252

Manoj Narula v. Union of India 2014 (9) SCC 1

Madan Gopal Kakkad v. Nawal Dubey, 1992 (3) SCC 204
Mahla Ram v. The Crown, AIR 1924 Lah 669
Muhammad Afzal and another v. The Crown, AIR 1950 Lah.151

Nazir Ahmed v. State of Jammu and Kashmir, 2008 CrLJ 2628 (SC).
Neel Kumar v. State Of Haryana, (2012) 5 SCC 766
Nura v. Rex, AIR 1949 All 710

P. Rathinam v. State of Gujarat, 1993(2)SCALE 631

Phul Singh v. State of Haryana, AIR 1980 SC 249

Queen v. Clarence, (1888) 22 QBD 23

R. v. Allen, (1989) 9
R. v. Mayers, (1872) 12 Cox 311

Page 6 of 82
 R. v. Young, (1878) 14 Cox 114.
R. v. Fletcher, (1859) 8 Cox 131
R. v. Press, (1867) 10 Cox 635
R. v. Baratt, (1873) LR 2 CCR 81
R. v. Ryan, (1846) 2 Cox 115
R. v. Camplin, (1845) 1 Cox 220
R. v. Ryan, (1846) 2 Cox 115.
Rahimbeg and Mahadeo v. State of U.P., AIR 1973 SC 343.
Rafiq v. State of UP, 1980 Cri U 1344 (SC).
Ramroop Das v. State, 1993 Cri. LT 1000 (Ori).

State Government of NCT of Delhi v. Sunil, 88(2000)DLT 630 (SC)

State of Haryana v. Prem Chand and others, AIR 1990 SC 538
State of Karnataka v. Mahabaleshwar Gourya Naik, AIR 1992 SC 2043.
State of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990 SC 658
State of Punjab v. Gurmit Singh, AIR 1996 SC 1393.
State of H.P. v. Mango Ram, (2000) 7 SCC 224
State of Rajasthan v. Ram Narain, 1996(2) SCALE 34. State of Rajasthan v. Madan
Singh,2008 CrLJ 1939 (SC).
Sheikh Zakir v. State of Bihar, AIR 1983 SC 911.

Vishakha v. State of Rajasthan, AIR 1997 SC 3011.

Vinod kumar v. State of M.P, 1987 Cr L J 1541.

Page 7 of 82
 LIST OF ABREVIATIONS

AC- Appeal Cases

AIR- All India Reporter
CCS- Central Civil Services
CEDAW- Convention on Elimination of Discrimination Against Women, 1999
CRC- Childrens Rights Convention
Cri LJ- Criminal Law Journal
Cr PC- Code of Criminal Procedure, 1973
DLR- Delhi Law Review
FIR- First Information Report
FGM- Female Genital Mutilation
HMA- Hindu Marriage Act, 1955
IPC- Indian Penal Code, 1860
ICPS- Integrated Child Protection Scheme
IPCCR- International Covenant on Civil and Political Rights
NCW- National Commission for Women
NHRC- National Human Rights Commission
NOW- National Organization for Women
PSTD- Post Traumatic Stress Disorder
R.w.- Read with
SCC- Supreme Court Cases
SDA- Sex Discrimination Act
UNCRC- United Nations Convention on the Rights of the Child, 1989
UNDHR- Universal Declaration of Human Rights
UNICEF- United Nations Childrens Fund
UNIFEM- United Nations Development Fund for Women
VAWA- Violence Against Women Act, 1994
WHO- World Health Organization

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 TABLE OF CONTENTS

CHAPTER I: INTRODUCTION ...............................................................................................12

1.1.Background of Study ............................................................................................................12
1.2. Literature Review13
1.3.Subject of
Study....15
1.4. Area of
Study.15
1.5.Statement of
Problem16
1.6.Significance/ Justification of the
Study....16
1.7.Objectives of
Study....16
1.8.Hypothesis....17
1.9. Research
Questions..17
1.10. Research
Methodology18
1.11. Overview of Chapters ........................................................................................................18
CHAPTER II: MARITAL RAPE ..............................................................................................19
2.1. Introduction .............................................................................................................................19
2.2. Historical Background....20
2.3. Concept of Marital Rape .........................................................................................................21

2.4. Theories of Marital Rape23

2.5. Types of Marital Rape....23

2.6. An analysis of the Present Scenario of Marital Rape25

2.7. Human Rights Violation.....27

2.8. Legal Position in India29

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2.8.1. Rebuttal of Arguments Against Criminalization of Marital Rape...31

2.8.2. Lacunae in Indian Law.32

2.9. Legal Position in Other Countries...34

2.10. Conclusion36

CHAPTER III: FLAWS OF RAPE LAWS IN INDIA..37

3.1. Introduction37

3.2. Incidence of Sexual Violence against Women...38

3.3. Types of Rape.39

3.4. Gender Biased Law39

3.5. Marital Rape: An Exception...41

3.6. Consent...43

3.7. Non Penile- Vaginal Rape is not a Rape.45

3.8. No Exclusive Provision for Pedophiles..48

3.9. Poor Definition of Penetration48

3.10. Recommendations.50

3.11. Conclusion52

CHAPTER IV: FEMALE GENITAL MUTILATION54

4.1. Introduction54

4.2. Concept of Female Genital Mutilation.......55

4.2.1. Types of FGM.55

4.2.2. Causes behind FGM.56

4.3. Historical Background and Fight against FGM.58

4.4. Violation of International Human Rights...60

4.4.1. Other Human Rights Violation62

4.5. Position in India..63

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4.6. Legal Framework in India.64

4.7. Conclusion.............66

CHAPTER V: SEXUAL AND REPRODUCTIVE RIGHTS...67

5.1. Introduction67

5.2. International Conventions...68

5.3. Health Implications of FGM and Marital Rape..69

5.3.1. Physical Health Outcomes...69

5.3.2. Psychological Outcomes..71

5.4. Recommendations..71

5.5. Conclusion..72

RECOMMENDATIONS...73

I. Legal Measures73
II. Regulatory Measures...............75

CONCLUSION78

REFERENCE..........80

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 CHAPTER 1: INTRODUCTION

1.1. BACKGROUND OF STUDY

With the above citation, this proposition features the issue profound established sex segregation
in the general public which is prompting the disavowal of sexual and regenerative privileges of
the ladies from quite a while now. Sexual viciousness includes the shocking violations that can
be conferred against ladies. Sexual viciousness can be of many sorts and can be polished against
any sex however steady increment in the insights of the sexual savagery against ladies gets our
consideration more often than not. The main sexual viciousness against ladies incorporate
assault, conjugal assault, associate assault, female genital mutilation (FGM), youngster ambush,
tyke prostitution, tyke obscenity, and so on. This proposition will concentrate on two
fundamental issues identified with sexual brutality against ladies, specifically: conjugal assault
and female genital mutilation.

In this given scenery, through this paper, we will worry upon the need to take a gander at
auxiliary and ideological causes that underlie the issue past the arrangement of security against
brutality however to wipe out its motivation i.e. sexual orientation segregation and in addition to
address its outcomes. This approach reanalyzes the sex based viciousness as a coherent result of
unequal social, social and monetary structures, as opposed to a social deviation or a 'lawfulness'
issue; embroiling state structures in fortifying the underlying drivers and in this manner
managing conditions for sexual orientation based brutality.

Viciousness against ladies is an appearance of recorded unequal power connection amongst

ladies and men, which have prompted control over and oppression ladies, and is a social
instrument by which the subordinate position of ladies is tried to be sustained. Ladies endure
even today, however they constitute the greater part of the world' s populace. In a 1980 UN
Report, it was accounted for that ladies constitute a large portion of the world' s populace,
perform about 66% of its work hours, get one-tenth of the world' s wage and short of what one-
hundredths of the world' s property.

Brutality against ladies is characterized as Any demonstration of sex based savagery that
outcomes in, or is probably going to bring about, physical, sexual or mental mischief or enduring
to ladies, including dangers of such acts, pressure or self-assertive hardship of freedom, in the
case of happening openly or private life.

Marital rape is the type of sexual brutality where the spouses are dealt with not as an individual
but rather as a property of the husbands in light of which their fundamental human rights are
terribly damaged and there is no arrangement or law against the same. In India and in different
parts of the world, verifiably, the law has settled in the idea of ladies as the property of me, first
of their fathers and after that their spouses. This is plainly obvious from assault enactment which
was initially sanctioned to shield a man's property from other men, not to protect ladies' rights.

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Presently, Female Genital Mutilation (FGM) has likewise gotten a lot of consideration in the
current years at both national and universal levels. There's a solid civil argument on the part that
law should play in tending to the social practice that is unequivocally tied down in social
convictions and standards. While history discloses to us that law alone can't change social
conduct, the current appropriation of criminal laws disallowing FGM in numerous African and
Western countries has set up a part for law in propelling the procedure of social change. FGM
must be recognized as an infringement of human privileges of ladies and young ladies and it
can't be isolated from the profound established and inescapable oppression ladies.

1.2. LITERATURE REVIEW

According to latest survey of UNICEF; Around 120 million girls under the age of 20 (about 1
in 10) have been subjected to forced sexual intercourse or other forced sexual acts at some point
in their lives. Boys are also at risk, although a global estimate is unavailable. Sexual violence is
one of the most unsettling of childrens rights violations. As such, it is the subject of dedicated
international legal instruments aimed at protecting children against its multiple forms. Acts of
sexual violence often occur together and with other forms of violence, range from direct physical
contact to unwanted exposure to sexual language and images. Sexual violence is often used as
an umbrella term to cover all types of sexual victimization, including exploitative as well as non-
exploitative form.1

In a book edited by VR Wiehe and AL Richards for instance PL Peacock highlights the need for
multiple actors including medical professionals, social workers, attorneys, law enforcement
personnel, clergy and elected officials to play their part in creating a solution. In addition, RK
Bergen writes that the criminalization of wife rape under all circumstances is a necessary step
toward eliminating this heinous crime. R Goodman2 explores the laws capacity to produce or
inhibit particular behaviors. Goodman argues that, in certain instances, even unenforced laws can
profoundly affect the way people perceive themselves in relation to society which can influence
how they choose to behave. Feminist and legal critiques of the marital rape exemption including
those of MJ Anderson exposes the unequal distribution of power by the law through institutions
such as marriage.3

According to Sir Matthew Hale as cited in Rusell, 19904, who was a chief justice in England,
published the following in the History of the Pleas of the Crown5: But the husband cannot be

1
United Nations Childrens Fund, Preventing and Responding to Child Sexual Abuse and Exploitation: Evidence
review, UNICEF, New York, 2014 (forthcoming).
2
R Goodman Beyond the enforcement principle: sodomy laws, social norms and social panoptics (2001) 89
California Law Review 643.
3
MJ Anderson Lawful wife, unlawful sex - examining the effect of the criminalisation of marital rape in England
and the Republic of Ireland. Quoting John Stuart Mill in his The subjection of women (1869) she indicates that
through legal tools such as the marital rape exemption, Marriage is the only actual bondage known to our law.
There remain no legal slaves, except the mistress of every house
4
Rusell, 1990, p. 17.

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guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial
consent and contract the wife hath given up herself in this kind unto her husband, which she
cannot retract According to Jennifer A. Benice in her book Marital Rape: History, Research
and Practice6, this above statement became the Lord Hale Doctrine and represented common-
law marital rape exemption, under which husbands could not be accused of committing crime of
rape against their wives. Instead of basing his doctrine on legal argument, however, Lord Hale
relied solely on the theory of irrevocable consent to justify the marital rape exemption.7

Again, In Blackstones Commentary on the Laws of England (1765), he wrote, Husband and
wife is legally one person. The legal existence of the wife is suspended during marriage,
incorporated into that of the husband....If a wife is injured, she cannot take action without her
husbands concurrence.

The above statements are evident to show the mindset of the patriarchal society and prove that
according to them, women are no human beings but just pleasure deriving objects for men. This
sick mindset made this heinous crime of marital rape as an exemption and no legislation is made
to criminalize this act. According to Diana E. H. Rusell in the book Rape in Marriage it is
written that; in the general population, 80% believe that husbands use force often or somewhat
often to have sex with their wives.8 Despite this, marital rape has been consistently invalidated
by our culture at large. One of the driving forces behind this widespread cultural invalidation has
been the commonly held belief that marital rape is not real rape.

Another important issue is that the practice of Female Genital Mutilation regrettably persists in
many parts of the developing world where it is firmly anchored in culture and traditions.9
According to Dorkenoo E in his book Combating female genital mutilation: An agenda for the
next decade; Efforts to eliminate female genital mutilation (FGM) have often been unsuccessful
because opponents of the practice have ignored its social and economic contexts. In some cases,
external intervention strengthened the resolve of communities to continue their genital cutting
rituals as a way of resisting what they perceive as cultural imperialism. Thus, FGM continues to
abuse and violate international standards of rights of women as innate sexual beings.

Statistics show that, in Ghana, FGM is prevalent in the northern parts of the country, where
type- II is documented to be the commonest form of the practice10. In this area, FGM is seen as a
passage rite in adulthood and is therefore undertaken just before marriage. Though recent
evidence indicates the practice is undergoing a major decline, accurate measurements of
5
(Hale, 1736)
6
Marital Rape: History, Research and Practice; Jennifer A. Bennice; http://ocadvsa.org/wp-
content/uploads/2014/04/Marital-Rape-History-Research-and-Practice.pdf
7
Small & Tetreault, 1990.
8
(Basile, 1999).
9
Althaus FA. Female Circumcision: Rite of Passage Or Violation of Rights? Int Fam Plan Perspec- Special report.
1994:23
10
Adongo P, Akweongo P, Binka FN, et al. Female genital mutilation: Sociocultural factors that Influence the
Practice in Kassena-Nankana District, Ghana. Afr J Reprod Health. 1998;2:2536.

Page 14 of 82
individuals' status, which is necessary for proper evaluation of intervention studies, poses
practical and ethical challenges. This is due to denial among respondents and also due to the
criminalization of the practice in recent years.11

According to Sillah MM. in Natural history (a monthly magazine of the American Museum of
Natural History)12 mentioned; All types of female genital mutilation involve removal or damage
to the normal functioning of the external female genitalia and can give rise to a range of well
documented physical complications. Psychological effects are less well documented in the
scientific literature but descriptions are abundant in anecdotal evidence and in women's stories of
their experiences. WHO convened a Technical Working Group on Female Genital Mutilation in
Geneva, Switzerland where it described that: Female genital mutilation is a deeply rooted,
traditional practice. However, it is a form of violence against girls and women that has serious
physical and psychosocial consequences which adversely affect health. Furthermore, it is a
reflection of discrimination against women and girls.

On the above comprehensive explanation, it is proposed through this research that legislation
criminalizing marital rape should be immediately implemented and it is strongly recommended
that steps should be taken on a global level to eradicate female genital mutilation as it is still
prevalent in many areas in the world. In recent times, marital rape has caught our immediate
attention whereas female genital mutilation has been prevailing from a long time now and has
still not been eradicated completely. The researcher in this research finds causes of the
continuous prevalence of FGM and drastically increasing marital rape. These criminal acts
violate the human rights of the women and children as sexual and reproductive rights fall under
the human rights of the people according to UDHR.

1.3. SUBJECT OF STUDY

The subject of the study is International law, Constitutional law, Criminal law and National
and regional laws on sexual violence against women. The subject of this study revolves
around the gross violation of the fundamental and human rights of women worldwide by the
practice of the criminal act of Female Genital Mutilation and marital rape. Sexual violence
against women in any form infringes their rights in all ways and the perpetrators deserve to be
penalized. Such criminal acts leave a long lasting impact of the victims physically and mentally.

1.4. AREA OF STUDY

The area of study is:
Universal Declaration of Human Rights (UDHR)
International Covenant on Civil and Political Rights (ICCPR)
Violence Against Women act, 1994 (U.S. Federal Law)

11
Jackson EF, Akweongo P, Sakeah E, et al. Inconsistent Reporting of Female Genital Cutting Status in Northern
Ghana: Explanatory factors and analytical consequences. Stud Fam Plann. 2003;34:200209.
12
1996, 105:42-51.

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 Chapter III of Constitution of India
Section 375 of Indian Penal Code, 1860 (IPC)
Protection of Women from Domestic Violence Act, 2005
Protection of Children from Sexual Violence Acts, 2012 Act
Code of Criminal Procedure, 1973

1.5. STATEMENT OF PROBLEM

This study proposes that root cause of violence against women, which includes marital rape is
gender discrimination.13 Accordingly, laws and social norms which discriminate against women
contributes to violence against women by sustaining its root cause and those which condone
violence against women, such as marital rape as an exemption thus serves as a tool through
which the state entrenches gender discrimination and perpetuates violence against women.

1.6. SIGNIFICANCE/ JUSTIFICATION OF THE STUDY

Marital rape and FGM are a world- wide phenomenon and just like all other acts of gender-
based violence these should not be viewed as a random, isolated crimes against an individual
who happens to be a female but rather as a crime against an individual that is intended to
terrorize the larger group of people- women.14 Research reveals, that elsewhere in the world,
marital rape is the most prevalent form of rape and the consequences of it are profound which
refutes the myth that it is less traumatic than stranger rape.15 According to UNICEF 2016, two
hundred million girls and women in the world are estimated to have undergone FGM.16

Such crimes indicate that gender discrimination, which is cited by the SRVAW as the root cause
of Violence against Women (VAW) is prevalent and that the role of law is not being effectively
harnessed to remedy this situation. Convention on Elimination of All forms of Discrimination
against Women obligates the states parties to ensure access to health care services, including
those related to family planning. Thus, exploring the extent to which the law can serve to
restore the dignity of society by laying the foundation for equality is critically important.

1.7. OBJECTIVES OF STUDY

13
Article 2 of the Declaration on the Elimination of Violence against Women explicitly states that Violence against
women shall be understood to encompass, but not be limited to, the following: (a) physical, sexual and
psychological violence occurring within the family including...marital rape...
14
R Coomaraswamy and LM Kois Violence against women in KD Askin and DM Koening (Eds) Women and
International Human Rights Law 1 (1999) 185. This was argued using the example ofdomestic violence in general.
It was also highlighted that this perspective should be applied to all acts of violence, including those based on
ethnicity, national origin, religion and sexual identity.
15
Supra note 8.
16
UNICEF, 2016. Female genital mutilation/cutting: a global concern. 2016

Page 16 of 82
The primary objective of this study is to establish the role of law in confronting marital rape in
and Female Genital Mutilation in India. It will seek to determine the status of women in India
and in different countries and how this intersects with the legal framework on marital rape and
female genital mutilation to either aggravate their vulnerability to these crimes or ameliorate
them. This study also seeks to determine how international, regional and domestic human rights
laws can be used to address discrimination against women and also to eradicate the problems like
marital rape and female genital mutilation. Finally, this study seeks to determine how the impact
of law can be maximized by highlighting some of the main challenges posed to its
implementation. At last, this study seeks to suggest and recommend ratify International
Conventions in the domestic laws of the nations that penalizes marital rape and FGM and to give
sexual and reproductive rights a place in the Constitution.

1.8. HYPOTHESIS

The rising sexual violence against women like marital rape and FGM is the result of deep rooted
patriarchy in the society and poorly implemented laws. This study focuses on sexual violence
against women worldwide with special preference to marital rape and female genital mutilation.
According to United Nations latest statistics, proportion of women aged 1549 years
experiencing sexual violence (irrespective of the perpetrator) at least once in their lifetime and in
the last 12 months, 1995 2013.17 According to the Ministry of Home Affairs, a crime is
committed against a woman in India every three minutes. The National Crime Records Bureau
reports 1, 85,312 crimes committed against women in 2007 75,930 of which were considered
to be of domestic violence (Cruelty by husband or relatives).

On the above comprehensive explanation, it is proposed through this research that legislation
criminalizing marital rape should be immediately implemented and it is strongly recommended
that steps should be taken on a global level to eradicate female genital mutilation as it is still
prevalent in many areas in the world.

1.9. RESEARCH QUESTIONS

This study will pose the following questions:

A. What is the Status of women in India and in different countries?

B. Is the status of women contributing to their risk of marital rape and FGM?
C. How do the International, domestic and regional legal frameworks seek to confront the
problem of marital rape and Female Genital Mutilation?
D. What are the challenges posed to the implementation of laws which seeks to confront
marital rape and FGM?
E. Whether the prevalent laws effectively address the root cause of marital rape and FGM,
namely sexual violence against women and gender discrimination?

17
Supra note 8.

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1.10. RESEARCH METHODOLOGY

A socio- legal approach was taken with regards to accumulating research for this study as not
only from the legal arena but also issues regarding its impact and implementation and from the
social arena. Doctrinal research was conducted with second hand source of information. Desktop
and library research was conducted to detail the Indian and international context along with the
legal frameworks and challenges for the implementation of the same. Such information was
supplemented by focused group discussions with NGOs, the police department and other
stakeholders. And the conclusion is encapsulated based on the results of a qualitative survey
using random sampling method.

1.11. OVERVIEW OF CHAPTERS

Chapter I: This is an introductory chapter which sets out the context of the research questions;
the methodology to be used in investigating the research questions; an overview of the relevant
literature. This gives a brief understanding about the topic of the research, the subject matter of
the study and the main area of the study.
Chapter II: Marital rape has recently caught everyones attention in India as it has shown a
giant loophole in countrys judicial system. This describes the concept of marital rape, its
historical background, theories, types, an analysis of its present scenario, human rights violation
and legal position in India.
Chapter III: This highlights the flaws of Rape laws in India which enlists the loopholes of
Section 375 of IPC, 1860; about incidence of sexual violence against and lastly enlists the
recommendations for the same.
Chapter IV: This about the female genital mutilation (FGM). This describes about its concept,
types, causes, historical background, violation of international and other human rights, position
in India and legal framework.
Chapter V: This describes Sexual and reproductive rights as a fundamental and human rights
according to UDHR and other international conventions. This highlights the importance of
sexual and reproductive rights and points out that practices like FGM and marital rape takes
away these rights from the women and girls which is strongly condemned. It highlights the
physical and psychological health implications of these practices on women.

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 CHAPTER 2: MARITAL RAPE

Mother he raped me! said the girl, But hes your husband child! said the mother, as she
cried in her lap thinking at least her mother would have understood the dilemma.

2.1. INTRODUCTION

The term marital rape refers to unwanted intercourse obtained by force by one of the spouse to
another mostly its victims are the wives. The words unwanted intercourse refers to all sorts of
penetration (whether anal, vaginal or oral) perpetrated against a wifes will or without her
consent. Historically, a man could not and to this day, cannot be criminally prosecuted for raping
his wife under the Indian legislation. This inability to prosecute a husband, criminally, is based
on the common law definition of rape itself. The foundation of this exemption can be traced back
to the statement made by Sir Matthew Hale, C.J., in 17th century England. Hale wrote: The
husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their
mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband,
which she cannot retract." This established the notion that once married, a women does not have
the right to refuse sex with her husband. This allows husbands rights of sexual access over their
wives in direct contravention of the principles of human rights and provides husbands with a
license to rape" their wives.

Marital rape has recently caught everyones attention in India as it has shown a giant loophole in
countrys judicial system. This form of rape takes place when one spouse forces the other into
non- consensual sex. This can or cannot include physical torture during the intercourse, but the
fact that it is non- consensual is enough to make it an act of rape, even if the perpetrator is the
victims legal and religious spouse. The main problem with most of the case of marital rape is
that the victims themselves fail to realize that they are being violates and wronged. The fact that
men have complete rights over their wives and that the wife must always submit to her husbands
physical desires even when she isnt in the right health to do so, is drilled into women in India
and in many other countries as they are brought up. Marital rape is not perceived as a crime
because men and our society justify the act under the banner of religion. However, it needs to be
noted that no religion allows for physical abuse against women, and no religion asks women to
endure such torture.

There are many cases where doctors have reported numerous cases where women have come in
with injuries and complications as a result of marital rape. Vaginal tears and infections are
amongst the most common complaints registered. Most women are often advised a rest period of
six to seven weeks before they can engage in sexual intercourse again, but their husbands refuse
to comply. These women also undergo multiple abortions for contraceptive methods are

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perceived to be prohibited by some religions. Even in countries where marital rape is a crime,
none of the cases have been reported.

There is a lack of sex education and treatment of women as sex objects are the core reasons
behind marital rape, and our societys inability to view it as a crime. Women need to be informed
about their rights, they need to be told that societys misplaces expectations should not be
confirmed to at the expose of ones own dignity and self respect.

2.2. HISTORICAL BACKGROUND

At first, it is quoted what Indian tradition preaches us i.e. MAATRI DEVO BHAVA which
means worship thy mother; and women should be honored with great reverence like goddess.
India has distinct cultural and moral values from its counterparts. History attests that man has
subjected women to his will, used her as a means to promote his self gratification, to minstrel to
his sensual pleasure, as an instrument in promoting his comfort, but never he has desired to
elevate her to that rank which she was created to occupy.18 Though ancient literature pinpoints
towards a better position for the females, yet many ancient writers like Confucius, Aristotle,
Manu etc. were of the opinion that it is a natural right of a male to assert dominance and the
females were accorded inherently inferior position.

Gender discrimination and violence against women is not only a crime but also a violation of
womens human rights; rape or sexual violence for instance is not only an affront to the chastity
of womankind but also a profound violation of her bodily integrity, security, and freedom from
discrimination.19

Historically and even now a man could not and cannot be criminally prosecuted for raping his
wife under the Indian Legislation. This inability to prosecute a husband, criminally, is based on
common law definition of rape itself. Marital rape is any unwanted sexual acts by a spouse or ex-
spouse, committed without consent and against a persons will, obtained by force, or threat of
force, intimidation, or when a person is unable to consent. Rape is a heinous offence, which
hinges on the absence of consent of the woman. It is important to realize that the absence of
consent does not have to be only in the form of the word no. Within a marriage, if a woman
gives consent to sexual intercourse because of threat of injury to children or herself, depriving
the woman of the right to stay in the house or receive maintenance, it is not valid consent; it is
rape.
Once married, a man is bound by the duties of marriage to respect his wife and treat her with
dignity.20 The concept of matrimonial rape has evolved in the recent period. However, neither in
the past nor in the present have such laws been formed which prosecute a married man for

18
Sexual Violence Against women with special reference to Rape: Victimization and Judicial Approach in India;
Sonia Aneja; http://shodhganga.inflibnet.ac.in/bitstream/10603/78428/5/05_chapter.pdf
19
Fried 2003; 88, 96
20
Marital Rape Under Indian Law: A Study, Mukesh Garg, IJMSS, Vol. 1, Page No. 2.

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forcing his wife to have sex with him. Common law does not provide any remedy for such a
torture being caused and thus has to provide her husband with everything that he asks for.
In India, marital rape is still not considered to be an offence. Despite many efforts put by the law
commission in its reports or bills brought up before the parliament, this horrendous act which
uproots the sanctity of a marriage, has not been declared as an offence. A married woman in
India has absolutely no laws to protect her and everything only depends upon the interpretation
of the courts. Thus, in India we see that the present scenario with regard to marital rapes is that
the offence, in a due facto manner exists in the legal regime but there has been no formal
illegalization and criminalization of such offence. In other countries across the world, however
such an act has either been criminalized or the judiciary has been actively involved in bringing
up reforms in their laws with regard to marital rape.21

It was back in 1800s, around 125 years back, when there was a situation that brought forth to the
law makers, a Girl of age 11 years who was brutally raped by her 35 year old husband. The then
colonial government proposed to amend the age of consent for a girl from 10 to 12 years, yet this
idea was criticised at large but only after much acrimony and argument was it amended in
1891.22

In the words of Dr. B. R. Ambedkar: realizing the depth of the degradation to which the so-
called leaders of the peoples had fallen Could any sane man, could any man with a sense of
shame, oppose so simple a measure? But it was opposed.

The Honble Supreme Court is of the view that rape is an act against humanity as a whole.23
However, there was no mention as to what was courts stand with regard to the offence of marital
rape. Further, women who want to raise their voices against sexual violence do not have a very
strong law supporting and protecting them against the exemption that Section 375 of the Indian
Penal Code, 1860, which specifically states that a husband cannot be prosecuted for forcing his
own wife to have sexual intercourse. However, of is not the case that there has been no progress
with regard to criminalization of such activities. The addition of Sec. 376-A is a step towards
protecting woman from such torture which criminalizes any sort of force to have sexual
intercourse, used on wife who is living separately. The husband can be fined and imprisoned to a
maximum of two years.

2.3. CONCEPT OF MARITAL RAPE

21
Marital Rape and Law in India; iPleaders; (Last updated on May 9, 2016); https://blog.ipleaders.in/marital-rape-
law-india/#_ftn28
22
India is one of 36 countries where Marital Rape is not a Crime. Here are the Changes we need; Legistify.com;
(Last updated on July, 2017); https://www.thebetterindia.com/109672/marital-rape-an-unrecognized-evil/
23
Bodhisattva Gautam v. Subhra Chakraborty, AIR 1996 SC 922.

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The word rape has been primarily derived from the Latin term raptus which refers to the act by
one man of damaging or destroying the property of another man. 24 Here, property primarily
referred to wife or daughter of another man.

Marital rape, as the name suggests is rape caused to a spouse by her husband. It basically refers
to the actual use or threat of use of force by the husband against the wife to compel her into
sexual intercourse.25 This form of rape also known as conjugal rape or wife rape is also said to
have taken place when the wife is compelled to have entered into sexual intercourse in a situation
when she is unable to express consent.26 This roots back to that age of the history of mankind,
when women were considered to the property of their husband. This was also covered by a legal
principle of coverture which refers to the wife being covered by the spouse once married, such
that she is now his property.27 It denies a woman her bodily integrity thus striking a blow at
womens rights.28

The issue of marital rape is largely neglected. Patriarchal domination of the society has come up
time and again and has granted to the husbands exemption in cases of marital rape basing on the
assumption that the wife has given herself to the husband through the contract of marriage.29
Modern leaders in support of the victims of marital rape, however, hold that marital rape is also a
form of rape and the marital status of the woman should have no bearing on the culpability in the
crime of rape.30 It is a form of rape that lays hidden under the cover of marital privacy that gives
both the husband and the wife, the right to protect the private acts that they both enter with
consent: it is not a guard to hide violent acts.31

The term marital rape (also referred to as spousal rape) refers to unwanted intercourse by a
man on his wife obtained by force, threat of force or physical violence or when she is unable to
give consent. The words unwanted intercourse refers to all sorts of penetration (whether anal,
vaginal or oral) perpetrated against her will or without her consent.

The idea of the sacrosanct; institution of marriage dished out by the mainstream Indian cinema is
a myth and is contrary to women perceptions of reality. Though marital rape is the most common
and repugnant form of masochism in Indian society, it is hidden behind the iron curtain of
marriage. Social practices and legal codes in India mutually enforce the denial of women sexual
agency and bodily integrity, which lie at the heart of women human rights. Rape is rape. Be it

24
Women And Gender In Medieval Europe: An Encyclopedia, Margaret Schaus, Taylor & Francis, 2006, 695.
25
Marital Rape And The Indian Legal Scenario, Priyanka Rath, Indian Law Journal, 1.
26
Sex Crimes: Perpetrators, Predators, Prostitutes And Victims, Ronald B. Flowers, Charles C. Thomas Publisher,
2006, 38.
27
Encyclopedia Of Rape, Merril D. Smith, Greenwood Publishing Group, 2004, 122.
28
Marital Rape- Myth, Reality And Need For Criminalization, Saurabh Mishra, Sarvesh Singh, available at
http://www.ebc-india.com/lawyer/articles/645.htm, last visited on March 28, 2016.
29
Home Truths About Domestic Violence, Jalna Hamner, Catherina Itzin, Routledge, 2013, 57.
30
License To Rape: Sexual Abuse Of Wives, David Finkelhor, Kersti Yiio, Simon and Schuster, 1987, 3.
31
Confronting Rape And Sexual Assault, Mary Odem, Jody Warner, Rowman & Littlefield, 1998, 81.

Page 22 of 82
stranger rape, date rape or marital rape. The law does not treat marital rape as a crime. Even if it
does, the issue of penalty remains lost in a cloud of legal uncertainty. The legal system must be
forced to accept rape within marriage as a crime. Further, women themselves must break free of
societal shackles and fight for justice. They must refuse to comply with the standards applied to
them as the weaker sex. This project shall try and expose the discrimination, shortcomings and
fallacies of the criminal justice system in India as regards marital rape. It goes on to provide
arguments and reasons necessitating criminalization of marital rape.

Despite the historical myth that rape by one's partner is a relatively insignificant event causing
little trauma, research indicates that marital rape often has severe and long-lasting consequences
for women. The physical effects of marital rape may include injuries to private organs,
lacerations, soreness, bruising, torn muscles, fatigue and vomiting. Women who have been
battered and raped by their husbands may suffer other physical consequences including broken
bones, black eyes, bloody noses, and knife wounds that occur during the sexual violence.
Specific gynecological consequences of marital rape include miscarriages, stillbirths, bladder
infections, infertility and the potential contraction of sexually transmitted diseases including
HIV.

Women who are raped by their partners are likely to suffer severe psychological consequences as
well. Some of the short-term effects of marital rape include anxiety, shock, intense fear,
depression, suicidal ideation, and post-traumatic stress. Long-term effects often include
disordered eating, sleep problems, depression, and problems in establishing trusting
relationships, and increased negative feelings about themselves. Psychological effects are likely
to be long-lasting. Some marital rape survivors report flashbacks, sexual dysfunction, and
emotional pain for years after the violence.

2.4. THEORIES OF MARITAL RAPE

Various authors have over time come up with different theories regarding the occurrence of
marital rape in the society:

1. The Feminist Theory: This theory considers marital rape as a tool in the hands of the
patriarchal society that is used to exercise control over women. They consider that the
exemption given in cases of marital rape is a remnant of the earlier laws regarding women
that considered them to be the property of the husband.32 The feminists are of the view that
marital rape is nothing but a result of a power play by the male spouse in the marriage.33
Radical feminists have gone to the extent of arguing that any form of heterosexual

32
Feminist Perspectives On Rape, Stanford Encyclopedia Of Philosophy, available at
http://plato.stanford.edu/entries/feminism-rape/, last visited on March 29, 2016.
33
Marital Rape In India: A Radical Feminist Perspective, Tamanna Khosla, Mainstream Weekly, Vol III, 2.

Page 23 of 82
 intercourse is based mainly on the desire of the man and is another form of oppression on
women.34
2. The Social Constructionism Theory: The believers in the theory of social constructionist are
of the view that men have dominated the society in law making and the political arena since
ancient days.35 Laws thus came as a reflection of the interest of men. Such laws considered
women to be their husbands property after marriage and hence, marital rape was considered
an offence of lesser degree as compared with rape.36 Some jurisdictions even considered that
rape in a marriage is not rape at all.37 The social constructionists believe that marital rape is a
means through which men try to assert themselves over their wives so as to retain their long
gained power over their property.38
3. The Sex-Role Socialization Theory: These theorists believe that it is the particular gender
roles which guide the sexual interactions between the spouses in a marriage. In a marriage,
women are always taught to be calm and passive, submissive whereas, men are trained to be
dominant and aggressive.39 Care and love are attributed to women. Men, on the other hand,
are the major perpetrators of sexual entertainment with violent themes.40 Sex role socialists
are of the view that marital rape is nothing but an expression of the traditional perceptions of
sex roles.41

2.5. TYPES OF MARITAL RAPE

Marital rape may be broadly classified into following two categories:

1. Sexual coercion by non-physical means This form of coercion involves social coercion
in which the wife is compelled to enter into sexual intercourse by reminding her of her
duties as a wife. This form of coercion entails applying non-physical techniques and
tactics like verbal pressure in order to get into sexual contact with a non-consenting
female.42 The most commonly used non-physical techniques include making false
promises, threatening to end the marital relationship, lies, not conforming to the victims
protests to stop, etc.43 Such acts of sexual coercion by the use of non-physical stunts

34
Marital Rape In India: A Radical Feminist Perspective, Tamanna Khosla, Mainstream Weekly, Vol III, 2.
35
A Review Of Marital rape, Patricia A. Resick, Research Gate, 332.
36
Encyclopedia Of Victimology And Crime Prevention, Bonnie S. Fisher, SAGE, 2010, 721.
37
Encyclopedia Of Domestic Violence, Nicky Ali Jackson, Routledge, 2007, 466.
38
Proximate And Ultimate Explanations Are Required For A Comprehensive Understanding Of Partner Rape,
Aaron T. Goetz, Aggression And Violent Behaviour, Elsevior, 2.
39
Social Perspectives On Violence, Thomas W Blume, Michigan Family Review, Vol. II, 3.
40
A Review Of Marital rape, Patricia A. Resick, Research Gate, 332.
41
A Review Of Marital Rape. Aggression And Violent Behavior, Martin, E. K., Taft, C. T., & Resick, P. A. (2007).
12, 329.
42
Understanding Perpetrators of Nonphysical Sexual Coercion: Characteristics of Those Who Cross the Line, Sarah
DeGue, David DiLillo, Violence and Victims, Springer Publishing Company, 1.
43
You Would If You Loved Me: Toward An Improved Conceptual And Etiological Understanding Of Nonphysical
Male Sexual Coercion, Sarah DeGue, David DiLillo, Aggression and Violent Behaviour, Elsevier Ltd., 517.

Page 24 of 82
 though considered less severe in degree as compared with physically coercive sexual acts
are widespread and pose a threat to womens rights in the society.44
2. Forced sex This involves the use of physical force to enter into sexual intercourse with
an unwilling woman. In what is called force-only rape, husbands use only the amount of
force necessary to coerce their wives; battering may not be characteristic of these
relationships. The assaults are typically after the woman has refused sexual intercourse.
3. Battering Rape- This form of marital rape involves the use of aggression and force
against the wife. The women are either battered during the sexual act itself or face a
violent aggression after the coerced sexual intercourse.45 The beating may also occur
before the sexual assault so as to compel her into sexual intercourse.46 In battering rape,
women experience both physical and sexual violence in the relationship and they
experience this violence in various ways. Some are battered during the sexual violence,
or the rape may follow a physically violent episode where the husband wants to make up
and coerces his wife to have sex against her will. The majority of marital rape victims fall
under this category.
4. Force Only Rape- In this form of rape, the husband does not necessarily batter the wife,
but uses as much force as is necessary to enter into sexual intercourse with the unwilling
wife.47
5. Obsessive Rape- This form of rape involves the use of force in sexual assault compiled
with perverse acts against the wife.48 It involves a kind of sexual sadistic pleasure
enjoyed by the husband.49 Other women experience what has been labeled as sadistic or
obsessive rape; these assaults involve torture and/or perverse sexual acts and are often
physically violent.

2.6. AN ANALYSIS OF THE PRESENT SCENARIO OF MARITAL RAPE

Current Scenario of Laws In Relation To Marital Rape

Marital rape has been hinted in the Domestic Violence Act, 2005. The Act prohibits any form of
sexual abuse in a live in or marriage relationship.50 However, this Act provides for civil remedies
only. Currently, in India, marital rape is not criminalized under the Indian Penal Code, 1860
(hereinafter referred to as the Code). Section 375 of the Code specifically excludes acts of sexual
violence in a marriage outside the purview of rape.51 However, under Section 376 B of the Code,
a man is punished for forced sexual intercourse without the consent of the judicially separated

44
Supra Note 19, at Page No. 3.
45
Marital Rape: A Crime Undefined, Ayush Chowdhury, Academike, 6.
46
Fundamentals Of Criminal Justice: A Sociological View, Steven E. Barkan, Jones & Barrett Learning, 2011, 83.
47
Violence Against Girls and Women: International Perspectives, Janet A. Sigal, ABC-CLIO, 2013, 137.
48
When the Bedroom is the Crime Scene: Contextualizing Intimate Partner Rape, ProQuest, 2008, 119.
49
Family Violence: Legal, Medical, and Social Perspectives, Paul Harvey Wallace, Routledge, 2015, 355.
50
Sec. 3, Domestic Violence Act, 2005.
51
Sec. 3, Domestic Violence Act, 2005.

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wife. Further, as also seen above, marital rape cannot form a direct ground for divorce under
different personal laws.

The provision for rape in the Code that clearly excludes marital rape from its ambit is violative
of the provisions of the Constitution of India. Art. 14 of the Indian Constitution provide for
equality of all persons before the law and prohibits any kind of state discrimination. However,
the Exception in Sec. 375 of the Code discriminates against married women and does not qualify
as a reasonable classification. It is thus, violative of the protection granted by Art.14.

Further, Art. 21 of the Indian Constitution provide for right to life and such life includes the right
to live with dignity. Marital rape infringes upon the right of a woman to live with dignity. Thus,
the Exception to Sec. 375 of the Code is in clear violation of Art. 21 of the Constitution.

Modern and Traditional Theories of Exemption of Marital rape

Various theories have been put forward time and again to justify sexual abuse of a wife by her
husband and the non inclusion of marital rape as a ground for divorce:

Traditional Theories:

Contract Theory: Marriage is generally treated as a contract and one of the conditions of
such a contract involves the implied consent of the wife to fulfill the sexual needs of the
spouse as per his whims and fancies. This gives to the husband a marital right to enter
into sexual intercourse with his wife. The contract theory, though fraught with flaws has
survived for a considerable time period.52 According to this theory, there exists no
concept of marital rape because sexual intercourse between spouses is always considered
consensual.
Women Treated As Property: This theory was mostly followed in the common law
system. The basic presumption was that the husband was the owner of his wife and
therefore could not be said to rape his own property. As women were treated as
property53, common law believed that seeking consent for sexual intercourse was
violative of mans right to property.
Marital Unity: Common law also believed that once married, the identity of a wife
merges with that of her husband and hence, the husband was considered unable to rape
himself. This theory considers the spouses to be a single entity.54

Modern Theories:

Less Serious: It is said that non-marital rape is more serious as compared to marital
rape.55 However, according to a survey by Joint Women Programme, in a group of seven

52
Spousal Rape: The Uncommon Law, ABA Journal, 1980, 1088.
53
Confronting Global Gender Justice: Womens Lives, Human Rights, Debra Bergoffen, Routledge, 2010, 288.
54
Family Law, Kelly Weisberg, Aspen Publishers, 2008, 84.
55
Domestic Violence: A Multi-Professional Approach For Health Professionals: A Multi-Professional Approach
For Health Professionals, Keeling, June, Mc-Graw Hill Education, 2008, 60.

Page 26 of 82
 married women, at least one is raped and sexually harassed by her husband. Hence, the
statistics reflect a picture contrary to the belief.
Difficulty in proving: Marital rape, being a crime of personal nature is very difficult to be
proved. However, the Domestic Violence Act, 2005 provides for a list of crimes that are
personal in nature but are also punishable. Thus, this excuse of facing difficulty in
proving marital rape cases does not hold ground for exempting the same.
Possible abuse: The criminalization of marital rape is fraught with potential chances of
abuse of the law by wives with ulterior motives to cause hardship to their spouse.

Marital Rape and Divorce

In order to break this legal deadlock, however, marital rape can be brought under cruelty and
hence can act as a ground for divorce. Cruelty refers to an intentional infliction of harm, either
mental or physical on a living being, especially a human.56 Also, the Indian Penal Code, 1860
explains cruelty as any act by the husband that drives the victim woman to commit suicide or
cause to her grave and serious injury, both mental and physical. 57 The landmark case of Shobha
Rani v. Madhukar Reddy58 observed that cruelty must be studied in light of the conduct of one
spouse towards another in a marriage and in the respect of marital obligations.

It is herein important to note that all personal laws follow the fault theory of divorce. 59 This
theory is generally opted by a spouse who desires to be absolved by way of proving the fault of
the other spouse.60 The Hindu Marriage Act, 1955 provides cruelty as a fault ground for
divorce.61 So also, the personal laws provide cruelty as a ground for divorce including the
Special Marriage Act, 195462, the Dissolution of Muslim Marriage Act63, the Indian Divorce Act,
186964 and the Parsi Marriage and Divorce Act, 193665. Thus, in order to constitute marital rape
as a ground for divorce one has to resort to the ground of cruelty due to the absence of a separate
ground of marital rape.

2.7. HUMAN RIGHTS VIOLATION

Human beings are not the same and they differ in many ways however the human rights norms
aim to provide a common understanding to individuals that they have equal rights. Human rights
are rights that exist as an essential element which is equally entitled without any discrimination

56
Domestic Violence: A Multi-Professional Approach For Health Professionals: A Multi-Professional Approach
For Health Professionals, Keeling, June, Mc-Graw Hill Education, 2008, 60.
57
Bryan A. Gaener, Blacks Law Dictionary, 9th Ed. , 2009, p.434.
58
Section 498A, Indian Penal Code, 1860.
59
The Sex Right: A Legal History Of The Marital Exemption, Rebecca M. Ryan, American Bar Foundation, Vol. 20,
946
60
Modern Hindu Law, Paras Diwan, 3rd ed., 62.
61
Sec. 13(1) (i-a), Hindu Marriage Act, 1955.
62
Sec. 27(1) (d), Special Marriage Act, 1954.
63
Sec. 2(viii), Dissolution of Muslim Marriage Act, 1939.

64
Sec. 10(1)(x), Indian Divorce Act, 1869.

65
Sec. 32(dd), Parsi Marriage and Divorce Act, 1936.

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to all human beings. According to Article 2 of the UDHR, Everyone is entitled to all the rights
and freedoms set forth in this Declaration, without distinction of any kind, such as, race, color,
sex, language, religion, political or other opinion, national or social origin, property, birth or
other status.66
However, the significant statements regarding the right to be free from sexual violence is
enshrined in the international human rights law under, the Universal Declaration of Human
Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the
International Covenant on Economic (ICESCR), Social and Cultural Rights and the Convention
of the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979. The
UDHR Article 3 and 7, states that Everyone has the right to life, liberty and security of person
and All are equal before the law.67 The Article 9 of the ICCPR refers to the same statement as
UDHE Article 3, moreover the Article 7 mentions that No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment. In the ICESCR Article 3 it says that The
State parties to the present Covenant undertake to ensure the equal right of men and women to
the enjoyment of all economic, social and cultural rights set forth in the present Covenant.
The Convention on the Elimination of All Forms of Discrimination (CEDAW) is the UN treaty
that specifically mentions womens basic right to equality and demands the states parties to take
positive measure to fight against the prevalence of gender discrimination.

1. Right to be free from all forms of Discrimination:

Sexual violence or rape is considered as discrimination on the basis of sex and it interferes with
the womens ability to function as full citizens. The non-discrimination clause is seen significant
as it is specified in almost all human rights instrument with the assumption that, human rights are
universal and all human beings have human rights since they are born free and equal in dignity
and rights (UDHR Art. 1). The Article 2 of the UDHR, UN Charter
Article 1 and 55, ICCPR Article 2 (1), and the ICESCR Article 2 (2), all these significant
instruments emphasizes on the individuals fundamental freedom without any kind of distinction
(Smith 2012: 195).
The CEDAW (General Recommendation 19) mentions that gender-based violence such as
Rape is an extreme form of discrimination which seriously inhibits womens ability to enjoy
rights and freedoms on a basis of equality with men (CEDAW 19, A/47/38). It also imposes an
obligation to the states parties to take positive measures and develop strategies to eliminate all
forms of violence against women. The state party is advised to review their laws and policies to
meet the needs of the women vulnerable to sexual violence. The state has a responsibility to
protect the members and to punish and prosecute the perpetrators (Merry
2009: 85, 86).
2. The Right to Life:

66
(Smith 2012: 214; Brownlie 2010: 40)
67
Brownlie 2010: 411.

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The right to life is considered the most significant of all rights since it protects the individuals
ability to act for the preservation and enjoyment of life. The gender based violence such as rape
consists of severe sexual and physical assault which in most cases causes death.
Rape is mostly seen as a sexual behavior as the violence involved in it is ignored (Merry 2009:
28, 85). Rape victims have a high risk of HIV/AIDS which is a threat to their right to life
Especially when raped by strangers. The right to life is specifically mentioned in the
International Covenant on Civil and Political Rights (ICCPR), the Article 6 (1) states that every
human being has the inherent right to life. This right shall be protected by law. No one shall be
arbitrarily deprived of his life (Brownlie 2010: 391). However, the Universal Declaration of
Human Rights (UDHR) also maintains that every human being has the right to life, liberty and
security of persons in the Article 3 (Brownlie 2010: 41). Moreover the concept of a right to life
has been widely discussed by the human rights advocates and the international human rights
organizations especially when certain states such as India impose death sentence to rapists (AI
Media Centre, 22 Mar 2013). The ICCPR states its view against death sentence under the Article
6 (Brownlie 2010: 391).
3. The Right to Bodily Integrity:
Nussbaum in her Capability approach, has place bodily integrity under the Central Human
Functional Capabilities and describes it as, being able to move freely from place to place; being
able to be secure against violent assault, including sexual assault, rape, and domestic violence;
having opportunities for sexual satisfaction and for choice in matters of reproduction(Nussbaum
1999: 55). Rape or sexual violence violates a persons right to bodily integrity since in most
cases it is mostly exercised over women without their valid consent and it also affects the
victims physical and psychological health.68
The Universal Declaration of Human Rights (UDHR) Article 5, points out that no one shall be
subjected to torture or to cruel, inhuman or degrading treatment (Brownlie 2010: 41).
Furthermore, the right to be free from sexual violence is a universal human right of human
beings.

2.8. LEGAL POSITION IN INDIA

In India marital rape exists de facto but not de jure. While in other countries either the legislature
has criminalized marital rape or the judiciary has played an active role in recognizing it as an
offence, in India however, the judiciary seems to be operating at cross-purposes. In Bodhisattwa
Gautam v. Subhra Chakraborty the Supreme Court said that rape is a crime against basic human
rights and a violation of the victim's rights most cherished of fundamental rights, namely, the
right to life enshrined in Article 21 of the Constitution. Yet it negates this very pronouncement
by not recognizing marital rape. Though there have been some advances in Indian legislation in
relation to domestic violence, this has mainly been confined to physical rather than sexual abuse.

68
(Mcanulty and Burnette 2006: 102-104).

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Women who experience and wish to challenge sexual violence from their husbands are currently
denied State protection as the Indian law in Section 375 of the Indian Penal Code, 1860 has a
general marital rape exemption. The foundation of this exemption can be traced back to
statements made by Sir Matthew Hale, C.J., in 17th century England. Hale wrote:

The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their
mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband,
whom she cannot retract

This established the notion that once married, a women does not have the right to refuse sex with
her husband. This allows husbands rights of sexual access over their wives in direct
contravention of the principles of human rights and provides husbands with a license to rape;
their wives. Only two groups of married women are covered by the rape legislation those being
under 15 years of age and those who are separated from their husbands. While the rape of a girl
below 12 years of age may be punished with rigorous imprisonment for a period of 10 years or
more, the rape of a girl under 15 years of age carries a lesser sentence if the rapist is married to
the victim. Some progress towards criminalizing domestic violence against the wife took place in
1983 when Section 376-A was added in the Indian Penal Code, 1860, which criminalized the
rape of a judicially separated wife. It was an amendment based on the recommendations of the
Joint Committee on the Indian Penal Code (Amendment) Bill, 1972 and the Law Commission of
India. The Committee rejected the contention that marriage is a license to rape. Thus, a husband
can now be indicted and imprisoned up to 2 years, if

1. There is a sexual intercourse with his wife,

2. Without her consent and

3. She is living separately from him whether under decree or custom or any usage.

However, this is only a piecemeal legislation and much more needs to be done by Parliament as
regards the issue of marital rape. When the Law Commission in its 42nd Report advocated the
inclusion of sexual intercourse by a man with his minor wife as an offence it was seen as a ray of
hope. The Joint Committee that reviewed the proposal dismissed the recommendation. The
Committee argued that a husband could not be found guilty of raping his wife whatever be her
age. When a man marries a woman, sex is also a part of the package. Many women organizations
and the National Commission for Women have been demanding the deletion of the exception
clause in Section 375 of the Indian Penal Code which states that sexual intercourse by a man
with his own wife, the wife not being under fifteen years of age, is not rape. However, the Task
Force on Women and Children set up by the Woman and Child Department of the Government
of India took the view that there should be wider debate on this issue. The mandate of the Task
Force was to review all existing legislation and schemes pertaining to women. Of the four

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recommendations made by the Task Force vis--vis rape under the Indian Penal Code, the most
significant pertains to the definition of rape. It took the position that the definition of rape ought
to be broadened to include all forms of sexual abuse. As per the recommendation, the Law
Commission proposed definition of sexual assault could be adopted in place of the existing
definition of rape in Section 375 IPC as it is wide, comprehensive and acceptable. However, like
the Law Commission, the Task Force also stopped short of recommending the inclusion of
marital rape in the new definition. As of now, the law in India is wholly inadequate in providing
supporting mechanisms for women to exercise bodily integrity and sexual autonomy.

2.8.1. REBUTTAL OF ARGUMENTS AGAINST CRIMINALIZATION OF MARITAL

RAPE

The following are some of the common arguments given against the idea and proposal of
criminalizing marital rape as an offence:

There is no need to give legislative attention to marital rape, as it is quite uncommon.

1. Due to the near impossibility of proving marital rape, its criminalization would only serve as
an increased burden to the already overburdened legal system.

2. Dissatisfied, angry, vengeful wives might charge their innocent husbands with the offence of
marital rape.

3. There is an implied consent to have sexual intercourse when a woman marries a man.

4. Marital rape laws would destroy many marriages by preventing any possible reconciliation.

A perusal of these arguments would make it quite evident that these are mere fanciful, lame
excuses of a male-dominated society that lack any sort of legal substance or moral force.

A rebuttal of the abovementioned arguments is not very difficult.

Marital rape is a common but under-reported crime. A study conducted by the Joint Women
Programme, an NGO, found that one out of seven married women had been raped by their
husband at least once. They frequently do not report these rapes because the law does not support
them. As to the second argument, that marital rapes are difficult to prove, it may be showed that
criminalization of marital rape, serves to recognize rape in marriage as a criminal offence and
would have a deterrent effect on prospective rapist husbands. The mere fact that marital rape
would be very difficult to prove is no reason for not recognizing it as a crime.

As regards the third argument of women foisting malicious charges, it may be noted that if
proving a claim of rape in marriage is hard, proving a fabricated claim will be even more

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difficult. Because of the associated stigma of rape trials, it is unlikely that women will elect to
undergo such an experience out of sheer spite. Besides, the criminal justice system provides
inherent safeguards such as the requirement of proof beyond any reasonable doubt. This is no
justification to say that the victims should be denied protection simply because someone might
be at risk of a fabricated case.

As far as the fourth argument is concerned, it is true that a wife impliedly consents to sexual
intercourse with her husband after marriage, but the expression of love through sexual intimacy
is not the same as forced sex. On the other hand, it strikes at the very foundation of matrimony
irrespective of whether the marriage is a sacrament or a contract. By no stretch of imagination
can it be said that a person consents to harm or violence by marriage, and neither does the law
permit any person to give such consent.

Finally, a marriage in which a husband rapes his wife is already destroyed. Attempt to hold
together marriages may be one of the objectives of matrimonial laws. But it cannot override the
fundamental objective of law in general and that of criminal law in particular, which is to protect
and preserve the bodily integrity of a human being. Thus, withholding justice and denying equal
protection for preserving marriages, at best, can be an improper goal of law. The law should not
encourage forced cohabitation and should not protect a raping husband.

2.8.2. LACUNAE IN INDIAN LAW

The whole legal system relating to rape is in a mess, replete with paradoxes. The major legal
lacunae that come in the way of empowering women against marital rape are:

1. The judicial interpretation has expanded the scope of Article 21 of the Constitution of India by
leaps and bounds and & right to live with human dignity 21 is within the ambit of this article.
Marital rape clearly violates the right to live with dignity of a woman and to that effect, it is
submitted, that the exception provided under Section 375 of the Indian Penal Code, 1860 is
violative of Article 21 of the Constitution.

2. Article 14 of the Constitution guarantees the fundamental right that the State shall not deny to
any person equality before the law or the equal protection of the laws within the territory of
India. Article 14 therefore protects a person from State discrimination. But the exception under
Section 375 of the Indian Penal Code, 1860 discriminates with a wife when it comes to
protection from rape. Thus, it is submitted, that to this effect, exception provided under Section
375 of the Indian Penal Code, 1860 is not a reasonable classification, and thus, violates the
protection guaranteed under Article 14 of the Constitution.

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3. Though protection of the dignity of women is a fundamental duty under the Constitution,
casting a duty upon every citizen & renounce practices derogatory to the dignity of a woman it
seems that domestic violence and marital rape do not come under the definition of dignity.

4. The United Nations Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW), of which India is a signatory, has viewed that this sort of discrimination
against women violates the principles of equality of rights and respect for human dignity.
Further, the Commission on Human Rights, at its fifty-first session, in its Resolution No.
1995/85 of 8-3-1995 entitled. The elimination of violence against women recommended that
marital rape should be criminalized.

5. A husband cannot be prosecuted for raping his wife because consent to matrimony
presupposes consent to sexual intercourse. This implies that having sex anytime, anywhere and
of any sort is an implied term of the contract of marriage, and the wife could not breach that term
of the contract.

6. The law prevents a girl below 18 years from marrying, but on the other hand, it legalizes non-
consensual sexual intercourse with a wife who is just 15 years of age.

7. The Indian Penal Code, 1860 states that it is rape if the girl is not the wife of the man involved
and is below 16, even if she consents. But if she is a wife, not below 15 and does not consent, it
is not rape.

8. Another paradox is that according to the Indian Penal Code, 1860, it is rape if there is a non-
consensual intercourse with a wife who is aged between 12 and 15 years. However, the
punishment may either be a fine or an imprisonment for a maximum term of 2 years or both,
which is quite less in comparison to the punishment provided for rape outside the marriage.

9. Though the advocates of women rights secured a clause in 1983 under which it is unlawful for
a man to have sexual intercourse with his separated wife pending divorce, the courts are reluctant
to sentence husbands in spite of the law.

Suggestions for reform In light of the above discussion following suggestions are made:

1. Marital rape should be recognized by Parliament as an offence under the Indian Penal Code.

2. The punishment for marital rape should be the same as the one prescribed for rape under
Section 376 of the Indian Penal Code.

3. The fact that the parties are married should not make the sentence lighter.

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4. It should not be a defence to the charge that the wife did not fight back and resisted forcefully
or screamed and shouted.

5. The wife should have an option of getting a decree of divorce if the charge of marital rape is
proved against her husband. Though a case of marital rape may fall under cruelty or rape as a
ground of divorce, it is advisable to have the legal position clarified.

6. Demand for divorce may be an option for the wife, but if the wife does not want to resort to
divorce and wants to continue with the marriage then the marriage should be allowed to
continue.

7. Corresponding changes in the matrimonial laws should be made.

Recommendation by the law commission of India in the 205th law commission report:

It further prays that the Union of India should be directed to amend the laws relating to age of
marriage and minimum age of giving sexual consent so that both are in conformity with each
other. The petition prays for deletion of the explanation under Section 375 IPC under which
marital rape is not considered rape unless the wife is less than 15 years of age.

2.9. LEGAL POSITION IN OTHER COUNTRIES

In United States researchers estimate that 10% to 14% of married women experience rape in
marriage. When researchers examined the prevalence of different types of rape, they found that
marital rape accounts for approximately 25% of all rapes. Despite the prevalence of marital rape,
this problem has received relatively little attention from social scientists, practitioners, the
criminal justice system, and larger society as a whole. In fact, it was not until the 1970s that the
society began to acknowledge that rape in marriage could even occur. Till recently, the general
rule was that a husband could not be convicted of the offence of raping his wife as he is entitled
to have sexual intercourse with his wife, which is implied under the contract of marriage. In
1993, marital rape became a crime in all fifty States, under at least one section of the sexual
offence codes. However, it is remarkable that only a minority of the States has abolished the
marital rape exemption in its entirety, and that it remains in some proportion or other in all the
rest. In most American States, resistance requirements still apply. In seventeen States and the
District of Columbia, there are no exemptions from rape prosecution granted to husbands.
However, in thirty-three States, there are still some exemptions given to husbands from rape
prosecution. When his wife is most vulnerable (e.g. she is mentally or physically impaired,
unconscious, asleep etc.) and is legally unable to consent, a husband is exempt from prosecution
in many of these thirty-three States. The existence of some spousal exemptions in the majority of
States indicates that rape in marriage is still treated as a lesser crime than other forms of rape.
Importantly, the existence of any spousal exemption indicates an acceptance of the archaic

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understanding that wives are the property of their husbands and the marriage contract is
entitlement to sex. In England, earlier as a general rule, a man could not have been held to be
guilty as a principal of rape upon his wife, for the wife is in general unable to retract the consent
to sexual intercourse, which is a part of the contract of marriage. However, the marital rape
exemption was abolished in its entirety in 1991. The House of Lords held in R. v. R. that the rule
that a husband could not be guilty of raping his wife if he forced her to have sexual intercourse
against her will was an anachronistic and offensive common-law fiction, which no longer
represented the position of a wife in present-day society, and that it should no longer be applied.
Corresponding amendment to the statutory law was made through Section 147 of the Criminal
Justice and Public Order Act, 1994. This judgment was also affirmed by the European Court of
Human Rights in the decision of SW v. UK. In New Zealand, the marital rape exemption was
abolished in 1985 when the present Section 128 to the Crimes Act, 1961 was enacted. Sub-
section (4) now provides that a person can be convicted of sexual violence in respect of sexual
connection with another person notwithstanding that they are married at the time the sexual
connection occurred. Further, the fact that the parties are married or have been in a continuing
relationship will not warrant a reduction in sentence. There is now, therefore, no distinction in
principle to be drawn between sexual violation in marriage and outside of marriage. In Mexico,
the country Congress ratified a bill that makes domestic violence punishable by law. If
convicted, marital rapists could be imprisoned for 16 years. In Sri Lanka, recent amendments to
the Penal Code recognize marital rape but only with regard to judicially separated partners, and
there exists great reluctance to pass judgment on rape in the context of partners who are actually
living together. However, some countries have begun to legislate against marital rape, refusing to
accept the marital relationship as a cover for violence in the home. For example, the Government
of Cyprus, in its contribution to the Special Rapporteur, reports that it's Law on the Prevention of
Violence in the Family and Protection of Victims, passed in June 1993, clarifies that is rape
irrespective of whether it is committed within or outside marriage.

If we examine the laws in different countries, we see that most countries punish rape within and
outside marriage.

For instance, in Australia a person can apply to a judge or magistrate for an order allowing
him/her to marry if he/she has reached the age of 16 years. However, by 1991 every state in
Australia had abolished the marital rape exception.

In New Zealand, a person under 20 years of age but over 16 years old can only marry with
parental consent. The age of sexual consent for women is also 16 years. There is no exception for
marital rape in the Crimes Act, 1961 of New Zealand. The marital rape exemption was abolished
in 1985.

In the UK, a marriage below the age of 16 years is void. The Marital rape exemption was
abolished in its entirety in 1991. In Egypt, the age of majority for all legal purposes except

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marriage is 21 years. The age for giving consent is 18 years and the penal code says that
intercourse with a girl below 18 years is rape.

In the U.S., different States have different laws. The marital rape exception has been abolished in
50 States of the US. In Indonesia the age of majority as well as marriageable age is 16 for girls
and 19 for boys. The age for giving a valid consent to a sexual act is also set at 16 years for a
girl. Any marriage below the legal age is void. The Domestic Violence law in Indonesia also
punishes a person in the household who forces sex on another person in the same household with
a maximum sentence of 15 years.

2.10. CONCLUSION

It is conceded that changing the law on sexual offences is a formidable and sensitive task, and
more so, in a country like India, where there is a contemporaneous presence of a varied and
differentiated system of personal and religious laws that might come into conflict with the new
amendments in the statutory criminal law. Further, though, there is need for substantial changes
in the law on sexual offences such as making them gender-neutral and eliminating the
inequalities, a radical overhauling of the structure of sexual offences is not advisable. The
immediate need is criminalization of marital rape under the Indian Penal Code. But, mere
declaration of a conduct as an offence is not enough. Something more is required to be done for
sensitizing the judiciary and the police. There is also a need to educate the masses about this
crime, as the real objective of criminalizing marital rape can only be achieved if the society
acknowledges and challenges the prevailing myth that rape by one spouse is inconsequential.

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 CHAPTER 3: FLAWS OF RAPE LAWS IN INDIA
No matter whom the people are or what the relationship is- the fault lies always with the person
who commits the acts. Sexual violence against women is power, aggression, domination, and
always humiliation. It has to do with all things being unequal.69

3.1. INTRODUCTION

The most heinous crime that can be committed against women, men or child is rape. Despite the
recent amendment in the rape law of India after the eye-opening Nirbhaya gang-rape case to
protect women, considerable limitations still remain. Of late, issues like Supreme Court asking
the government to create awareness amongst the public regarding child rape, rape of men,
acquaintance rape and marital rape calls for sensitization at various levels.

It is in this given backdrop, we will discuss that With increasing rape crimes in the country
is there a need to amend the existing rape laws and sensitize the victims regarding the
misuse of the laws?"

Lately, rape crimes against men and transgender have increased massively. There has also been
many cases of converting consensual se into rape by women post break- up as a revenge to
destroy the reputation of the men in the society. We will work on the surmise that Section 375 of
Indian Penal Code only recognizes rape crimes against women and not against the men. India
guarantees important fundamental rights to every citizen under articles 14 and 21 for their
protection from inequality and undignified living but which are being violated in many aspects.
This is most controversial area of law, which instead of protecting the rape victims actually
affects their rights. Article 375 of IPC is flawed provision which paves way for its misuse and
grave violation of the rights of men, bisexuals and transgender. The patriarchy is also reflected in
the current rape laws which legalize marital rape on one hand and on other hand leave out a
large swathe of male victims who cannot come forward for fear of stigma and a lack of legal
recourse. It is rightly declared in a judgment that India is a land of great paradoxes. Things
may be unconstitutional without being illegal.

69
PL Peacock Marital Rape in VR Wiehe (Ed) Intimate betrayal: understanding and responding to the trauma of
acquaintance rape (1995) 55.

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In the context of this problem, through this paper, it is supremely believed that increasing
emergence of misuse of rape laws call for regulatory and preventive measures to prevent the
consequences. There are certain cases where the court ordered the rapist to marry the victims and
there is an indispensable need to recognize non penile and anal sex as rape as it causes grave
injustice to the victims.

3.2. INCIDENCE OF SEXUAL VIOLENCE AGAINST WOMEN

Violence against any women is defined as any act of gender based violence that results in, or
is likely to result in, physical, sexual or psychological harm or suffering to women, including
threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or
private life.

Sexual violence describes the deliberate use of sex as weapon to demonstrate power over and to
inflict pain and humiliation upon, another human being. Sexual violence may be defined as any
violence, physical or psychological, carried out through sexual means or by targeting sexuality
civilized human society. Sexual violence, apart from causing immediate physical harm, leaves a
permanent scar in the memory of the victim, which destroys her emotional psyche tremendously.
Sexual violence not only negates the human rights of the victim concerned but at large level,
affects the society at large by lowering down the development prospects as it directly impinges
upon the potential of nearby half of the human population i.e., women.

Sexual violence may be homosexual as well as heterosexual. Women because of their oppressed
and subjugated position in society are far more prone, in terms of vulnerability to sexual
violence. The available evidence suggests that at least one in five of the Worlds Female
Population has been physically or sexually abused at some time in their lives.

Sexual crimes against women; the most shocking crime against human conscience and morality
occupy a significant place in the penal statutes of every country. Though women can be subject
to all types of crimes but some crimes are specific to women such as rape, molestation, sexual
harassment and immoral trafficking. Among them rape is perhaps the most damaging and a
serious offence against the dignity of women.

The Biological weakness of a woman particularly makes her an easily vulnerable victim of
tyranny at the hands of man in addition to socio-economic and educational factors. The women,
whose inferior status is established at the birth itself in view of female infanticide and sex

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determination are confronted with multi-dimensional problems at all stages of life, hence an
integrated search of means and methods is essential to prevent crimes, violence and atrocities
against women. Crime Against women has existed invariable with time and place. Types And
trends of crimes however, kept changing with change in mind set and techniques, unfortunately
women were not only accorded a lower status in the society but they also came to be used as
objects of enjoyment and pleasure, thus subjecting them to regular exploitation and
victimization. Sex is a natural phenomenon and is necessary for the continuity of human race and
sexual exploitation is the worst form of degradation of those who indulge in it. The Violation of
virginity subjects women to considerable shame and humiliation.
According to National Crimes Records Bureau, the crime head wise incidence of reported crimes
2009-10 is as follows:-
S. No. Crime Head Year Percentage
Variation in 2010
over 2009
2009 2010

1. Rape 21397 22172 3.5

2. Molestation 38711 40613 4.9

These statistics reveal a pathetic picture of rate of sexual violence against violence in India.
Statistics further reveal that during 2010, the total number of rapes cases, where investigation
could be completed, was very low, as 2802 out of an initial total 33436 pending cases and 11980
cases still remained pending. Charge- sheets were submitted in 55.79% of the total cases.

3.3. TYPES OF RAPE

There are two major types of rape:

1. Blitz Rape:
It occurs without warning or prior interaction between assailant and victim. There is no
explanation for the mans presence. He suddenly appears uninvited and forces himself into the
situation. He often selects an anonymous victim and tries to remain anonymous himself. He may
wear a mask or gloves or cover the victims face. In the blitz rape the stranger often cannot be
clearly seen and may sneak up on a woman or enter her house at night without her awareness.
2. Confidence Rape:
The Confidence rape is an attack where the assailant obtains sex under false pretences by deceit,
betrayal and often violence. There is some interaction between the assailant and the victim prior
to the assault. Like the confidence man, he encourages the victim to trust him and then betrays
this trust. The assault uses conversation rather than physical force to capture the victim.

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Confidence rape may involve a decoy, even another woman, and can include more than one
attacker.

3.4. GENDER BIASED LAW

Even after 71 years of independence, India still needs independence from a large number of
archaic and senseless laws. Indian Penal Code, 1860 is the law which needs to be amended as it
has been functional since the time it was governed by British in India and now with the increase
in newer forms of crime, certain provisions of IPC also needs to be amended. Quoting Article 21
of the Constitution and the Supreme Court in Rathinam v. State of Punjab, the state should
ensure that a citizen is enabled to lead a decent life.70 Section 375 and 36 of IPC, 1860 needs to
be immediately amended as it fails to acknowledge various types of sexual assaults as rape.
These flaws in the rape laws of India are huge obstacles in providing justice to the victims.

According to Section 375 of IPC, heinous crime of rape is only confined to women; it fails to
acknowledge the fact that this is gender neutral crime which can happen to male, homosexuals
and children too. Theres no room in this provision for penalizing rape against men or
homosexuals. Except in the case of sexual offence against children, which is covered under the
Protection of Children from Sexual Offences Act (POCSO), our rape laws are largely based on
section 375, which describes rape; section 376, which prescribes the punishment for rape; and
section 377, which criminalizes homosexuality and unnatural sex, all of which were originally
brought into action by the British, in turn stemming from a biblical interpretation that sexual
relations can only be between male and female and that a male cannot be raped, even by another
male.71

Male rape is not something unheard there are many cases which get reported as men being
sodomized as there is not separate law recognizing male rape. There are cases which are not
being reported but are still existent like males getting gang raped my females or other men.
There recently has been a case where the boyfriend of a girl was raped by other men sent by her

70
Section 309, THE HINDU, ( last edited at December 13, 2014); http://www.thehindu.com/opinion/letters/section-
309/article6686904.ece

71
How Much Longer Will Indias Rape Laws Not Recognise That Men Could Be Victims Too?; #Swarajya; (Last
updated on January 8, 2017); https://swarajyamag.com/ideas/how-much-longer-will-indias-rape-laws-not-recognise-
that-men-could-be-victims-too

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father and also photographed after that.72 There are such gross violation of the fundamental
rights of men and homosexuals and its very upsetting that our rape laws are not gender neutral.
There are innumerous cases of gays getting rapes by police officials and blackmailed to charge
them under Section 377 of IPC if they tried to report the crime of rape against them and cases
where male prisoners are raped my other police officials or co-prisoners. Transgender rape is
also very prevalent but goes unnoticed as Section 377 of IPC criminalizes same gender sex and
terms it as unnatural offences. Under section 377, the perpetrator does fall under the category
of guilty, but the onus is on the victim to prove his innocence in the case, due to section 375 not
recognizing him as a victim. This simply shows the mentality of our country which is if I go
down, so shall you.

In 2012, the then Union Cabinet even approved a proposal to make rape a gender-neutral crime
and replace the word rape itself with sexual assault. But, it received criticism from womens
groups, many of whom stated that it would harm women more than men.73 The reason given for
not making Indias rape law gender neutral is absolutely wrong and there is an immediate need
for understanding that it is a gender neutral crime and can happen to men and homosexuals too.
Men are not always the perpetrators and women are not always the victims as mentioned in
Section 375 of IPC, men can also be the victims. As seen in the story of the Delhi-based male
who was raped, he was unable to come out and state that he was raped, for fear that he may be
arrested under section 377, as well as the social stigma attached to it. The matter only became
public after his friend released screenshots of their conversation with the name edited out. This
incident is merely one of the many incidents of rape that usually are not reported because the law
does not recognize rape as an offence when the victim is not a female, and instead chooses to
charge them for sex that is against the order of nature, which itself is a mystery. 74 Even after so
many years of independence, still IPC contains such archaic provisions and fails to recognize
present day crimes because of which its purpose is not being served.

3.5. MARITAL RAPE: AN EXCEPTION

72
Manmohan Singh, Prime Minister of India: Make Gender Neutral Rape Law to punish for Male rape; Change.org;
https://www.change.org/p/manmohan-singh-prime-minister-of-india-make-gender-neutral-rape-law-to-punish-for-
male-rape
73
Supra note 3
74
Supra note 3

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Section 375 of IPC says sexual intercourse by a man with his own wife, the wife not being under
fifteen years of age, is not rape. This is the law which was made by British in India thousand
years back based upon the belief under that wife was considered as husbands chattel. She was
supposed to have given a general consent to her husband as a natural implication of the marriage.
This is not the scenario now in the modern India but this archaic provision still exists violating
the fundamental rights of the married women by not letting them have a legal remedy for the
same. In the case, R vs. R12, the House of Lords widened the scope of criminal liability by
declaring that the husband could be charged as a principal offender in the rape of his wife. This
decision seems to have obliterated the protection of the husband from such prosecution under the
doctrine of marital exemption. However, this decision of the House of Lords has not been
followed in India- where marital exemption to the husband still exists.

In 2015, a woman moved the apex court on the plea that she was raped and assaulted by her
husband. She was also hospitalized due to her injuries, however, her husband was never
prosecuted and the case was dismissed because our law does not consider rape by a spouse a
penal offence. It is a distressing reality that an abuse faced by women across the nation is not
recognized by the Indian law.75 The defense taken by the Parliament was to protect the married
girls between the ages of 15-18 years from sexual acts by their husbands to which apex court
said that the marriage of girls below the age of 15 years in illegal. The fact that if a man has
sexual intercourse with a girl below 15 years of age is rape but with a girl below 18 years and
above 15 years of age is not rape is a clearly flawed. This provision discriminates against
women based on their marital status and denies them equal protection before the law. Under
section 375 of the amended Penal Code, wives cannot bring a charge of sexual assault against
husbands except under extremely narrow grounds: where she is living separately under a decree
of separation or under any custom or usage.76

This provision fails to understand that a wife is a woman first of all and she can never stop being
a woman till the end of her days. So, if being a wife puts her into a more vulnerable position as

75
Marital Rape Of Girl Above 15 Years Is Not A Criminal Offence: SC After Parliaments Decision, The Logical
Indian, (Last updated on August 10, 2017); https://thelogicalindian.com/news/marital-rape-not-an-offence/
76
New anti-rape law flawed, must be rejected: Right groups; Rediff.com; (Last updated on February 12, 2013);
http://www.rediff.com/news/report/new-anti-rape-law-flawed-must-be-rejected-rights-groups/20130212.htm

Page 42 of 82
the husband could actually have intercourse without her consent, isnt the law backfiring? The
notion that a woman has impliedly submitted her consent to intercourse is again utterly wrong.
The two main ingredients of rape i.e. coercive and non consensual intercourse are being ignored
here leading to the one the most erroneous statues in IPC. Marriage should not give such an
arbitrary immunity to the husbands as marriage is not a license to rape his wife but a sacramental
ceremony to protect her.

This exception is clearly unconstitutional as it legalizes the cruel treatment of the husbands
towards their wives and also marriage of girls at such tender age when they barely have the
intellect to take such serious decisions. Also, after the gang rape of Jyoti Singh in 2012, the
Justice J S Verma Committee had backed the long standing demand of womens activists that
marital rape should be considered as a criminal offence. The law ought to specify that marital
or other relationship between the perpetrator and victim is not a valid defense against the crimes
of rape or sexual violation, the committee said in its report. The Parliament needs to remove
this exception which is a black mark as this has been destroying the lives of many innocent
women else the purpose of this provision will not be served.

3.6. CONSENT

Absence of consent is the essence of crime of rape. Consent has also been defined in Sec 375 of
IPC and it means an intelligent, positive concurrence of the will of the woman. 77 Earlier the
burden of proof was on the prosecution but as per the amendments Sec. 375 shifted the burden of
proof to the defendant. In the case charge of rape the onus lies upon the defendant to prove that
the sexual intercourse was with the consent of the woman and not against her will. It is not on the
prosecution to prove that the sexual intercourse was without the consent of woman. This

Sec. 375 recognizes six types of consent:

Consent obtained by misrepresentation, fraud, or under mistake is no consent. (Queen vs.

Flattery78)

77
Section 375: Analysis of Provisions relating to Rape; Soumya Singh Chauhan; Academike (ISSN: 2349-9796);
(Last updated on February 14, 2015); https://www.lawctopus.com/academike/section-375-analysis-of-provisions-
relating-to-rape/
78
1877 QBD 410.

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 Consent to intercourse on the assumption of false promise to marry. (Dileep Singh vs.
State of Bihar79)
Consent procured by putting the woman under fear of death or hurt is no consent in law.
Consent accorded under a misconception that the person is husband of the woman is not a
valid consent.
Consent procured by a woman of unsound mind or under influence of intoxication etc.
(Tulshidas Kanolkar v. State of Goa80)
Consent of a girl under 18 not valid in law.

With the new amendment in Sec 375, the defendant hast to establish that there was the presence
of consent of the female in the sexual intercourse. In the case of Pradeep Kumar Verma v. State of
Bihar (AIR 2007 SC 3059) the Supreme Court said that consensual sex shall not amount to rape. But, this
amendment has been a problem for the men as the modern women are misusing this privilege given to
them for their protection by Sec 375 to blackmail men. There have been many cases since then where the
women have been turning consensual sex into rape for destroying the reputation of the men. Since there is
no protection given by the Indian law to the men against such blackmailing, they are unable to report the
act and major population of innocent men from well-to-to family are choosing to commit suicide or
ending up being blackmailed by the women. This tough rape law was enacted for the protection of women
and not for them to misuse them for violating the rights of men.

There has been a recent case where a woman converted the consensual sex to rape post break up
in order to take revenge from her then boyfriend. There are many women who tend to use these
tougher laws as a weapon for vengeance and personal vendetta and tend to convert consensual
physical relations as an incident of rape may be out of anger and frustration after breakup thereby
defeating the very purpose of the provision (making physical relations with false promise of
marriage an offence), the Delhi High Court has remarked. Justice Pratibha Rani said so while
emphasizing the need for a clear demarcation between the rape and consensual sex especially in
the case where complaint is that consent was given on promise to marry. The high court made

79
(2005) 1 SCC 88.
80
(2003) 8 SCC 590.

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the remarks while dismissing a womans leave to appeal against the acquittal of a man, her live-
in partner, who she later accused of rape on false promise of marriage.81

There was another case where Delhi High Court orders against woman for false accusation of
gang rape.82 In some cases, the reason behind such false accusation of rape by women is the
revenge and other cases it is the personal gains that she might get by the government or just for
seeking attention. Accusers motivated by personal gain are generally the same people who slip
on the courthouse steps and sue the city. Sometimes their modus operandi is to claim to be raped
on government property; sometimes its to claim to have been raped by a government employee.
In either case, the resulting suit against the government will typically only be one in a series of
fraudulent claims.83 Though, the cases of reported false accusation by women are comparatively
less in India than in U.S.A. but it is increasing which needs to be stopped immediately.

3.7. NON PENILE-VAGINAL RAPE IS NOT A RAPE

The implications of these loopholes are that any act of forced sexual intercourse that doesnt
involve penile vaginal intercourse is not considered rape. These offences are dealt with under
Section 354 and Section 377 irrespective of the fact that the above mentioned offences are as
derogatory and humiliating as the offence of forced penile/vaginal intercourse is.
It is worthwhile to note that forced non-vaginal intercourse is usually practiced on children and
in such cases this loophole in Section 377 defeats the very purpose for which a differential
treatment was envisaged under Section 376 (2) (f).

There are some very pertinent reasons that necessitate the amendment of Section 376 and
bringing a change in the definition of rape. These are:
Forced sexual intercourse where penetration is not effected is dealt with under Section 354 and is
considered a less grave offence. The punishment prescribed for this section is not consistent with
the gravity of the crime, it is not only a bailable offence but it is compoundable also which
effectively means that there is a strong likelihood of a victim being compelled to withdraw her
case

Offences in the nature of penile/anal intercourse, penile/oral intercourse, object/vaginal

81
X vs. State NCT of Delhi & Anr (CRL.L.P. 137/ 2017); (Date of decision July 21, 2017);
http://www.livelaw.in/women-tend-convert-consensual-sex-rape-post-breakup-says-delhi-hc-read-judgment/
82
Delhi HC orders action against woman for false accusation of gang rape; Bar & Bench; (Last updated on August
19, 2017); https://barandbench.com/delhi-hc-orders-action-woman-false-accusation-gangrape/
83
What kind of person makes false rape accusations?; QUARTZ; https://qz.com/980766/the-truth-about-false-rape-
accusations/

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intercourse are covered under Section 377.This archaic law was enacted not to punish such
offenders but to punish homosexuality, thus consent is no defense for a charge of unnatural sex.
Therefore, this section places forced sexual intercourse at the same pedestal with consensual
sexual intercourse.

Section 354 and Section 377 prescribe no minimum punishment and therefore, no obligation on
the courts to record any special reasons on record for giving a lesser sentence to an offender. A
careful perusal of some of the judgments of the Supreme Court would lend credence to the fact
that there has been a judicial tendency to show undue leniency towards offenders of sexual
crimes.
In Raju v. State Of Haryana , a young boy aged 20/21 years had committed sodomy on a hapless
girl of 9 years of age for which was sentenced to 3 years imprisonment. On appeal the sentence
was reduced to 6 months citing young age of the appellant as a reason. However, the court failed
to take into account the age of the victim and the unimaginable trauma that the appellants
ghastly act had caused to her.

Similarly, in Chittaranjan Das v. State of Uttar Pradesh , the court reduced the sentence of the
appellant, a highly qualified and cultured individual who had committed the offence of sodomy
on a young girl, to 2 months. The loss of service of the appellant as a result of the conviction was
cited as a reason.
The result of these cases would have been different if these offences would have fallen under
Section 375 since there is an obligation on the part of the courts to impose a minimum sentence
as laid down in Section 376.

Under Section 327 (2) of the Criminal Procedure Code, there is no obligation on the part of the
court to provide an in camera trial to the victims of offences under Section 354 and Section 377.
Although, this issue has been addressed by the Supreme Court in Sakshi v. Union of India ,
however Section 228 A of the Indian Penal Code has still not been amended to ensure that the
victims identity is protected. This means that the public authorities, courts as well as the media
are not bound to protect the identity of a victim of the said offences.

In Phul Singh v. State of Haryana, it was clearly held that the benefit of Section 4 of Probation
of Offenders Act, 1958 cannot be accorded to a person who commits a reprehensible crime of
rape. However, there is no law to ensure that the benefit of this act is not given to a person
convicted of an offence under Section 354 or Section 377.

There has been an alarming rise in the cases of sexual abuse of children, if a girl child is
subjected to forced non vaginal , non anal sexual intercourse then the offender would be
punished under Section 354, however, if a boy is subjected to the same then the offender will
only be booked for the offence of voluntarily causing hurt or use of criminal force. It is

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submitted that the punishment prescribed in the code for these offences is not at all consistent
with the gravity of these offences.

The current law presumes that the offence of rape can only be committed against a woman by a
man. However, as mentioned above, there have been reported cases in UK wherein, women have
been convicted for committing the offence of rape. Assuming that a woman subjects another
woman to forced sexual intercourse through the use of an inanimate object or otherwise then she
cannot be booked for any offence under IPC since penetration is a necessary element for
establishing an offence under Section 377. Further, Section 354 also assumes that a woman
cannot outrage the modesty of another woman.

This narrow definition of rape has been criticized by Indian and international womens and
childrens organizations and civil society organizations. Their reasons have been succinctly
encapsulated in the famous Public Interest Litigation of Sakshi v. Union of India :

[...]The interpretation [by which such other forms of abuse as offences fall under Section 354
IPC or Section 377 IPC] is ... contrary to the contemporary understanding of sexual abuse and
violence all over the world. There has been for some time a growing body of feminist legal
theory and jurisprudence which has clearly established rape as an experience of humiliation,
degradation and violation rather than an outdated notion of penile/vaginal penetration.
Restricting an understanding of rape reaffirms the view that rapists treat rape as sex and not
violence and thereby condone such behavior.
The petitioner in this case placed reliance on the following reference from Susan Brownmillers
book Against our will to support this contention and to challenge the current interpretation of
rape.
[..] In rape ....the intent is not merely to "take", but to humiliate and degrade ..... Sexual assault in
our day and age is hardly restricted to forced genital copulation, nor is it exclusively a male-on-
female offence. Tradition and biologic opportunity have rendered vaginal rape a particular
political crime with a particular political history, but the invasion may occur through the mouth
or the rectum as well. And while the penis may remain the rapist's favorite weapon, his prime
instrument of vengeance......it is not in fact his only tool. Sticks, bottles and even fingers are
often substituted for the "natural" thing. And as men may invade women through other offices,
so too, do they invade other men. Who is to say that the sexual humiliation suffered through
forced oral or rectal penetration is a lesser violation of the personal, private inner space, a lesser
injury to mind, spirit and sense of self?

It was contended by the petitioner that the court should interpret Section 375 to include all forms
of penetration such as penile/vaginal, penile/oral, penile/anal, object/oral, object/vaginal etc.
within its ambit.

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The court however declined to accept this on the ground that penal laws are to be interpreted
strictly and doctrine of stare decisis has to be followed.

The 172nd Report of the Law Commission of India had made the following recommendations
for substantial change in the law with regard to rape.
i. The term Rape should be replaced by the term sexual assault.
ii. Sexual intercourse as contained in section 375 of IPC should include all forms of penetration
such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal and sexual
assault on any part of the body should be construed as rape.
iii. Rape laws should be made gender neutral as custodial sexual abuse of boys is rampant.
iv. A new offence, namely section 376E with the title unlawful sexual conduct should be
created.
v. Section 509 of the IPC was also sought to be amended, providing higher punishment where
the offence set out in the said section is committed with sexual intent.
vi. The commission recommended that explanation (2) of section 375 of IPC should be deleted.
Forced sexual intercourse by a husband with his wife should be treated equally as an offence just
as any physical violence by a husband against the wife is treated as an offence. On the same
reasoning, section 376 A was to be deleted.

Thus, there is an urgent need to redefine rape and to incorporate the above mentioned
recommendations in the definition of rape in order to ensure that there is no travesty of justice.

3.8. NO EXCLUSIVE PROVISION FOR PEDOPHILES

Child sexual assault is on the rise lately which calls for an exclusive provision penalizing child
sexual abuse in IPC. Though the Protection of Children from Sexual Offences Act covers the
same but having provision about the same in IPC is in itself a biggest flaw. Currently, child
sexual abuse is dealt in Section 375, 376 and 377 but we need to understand that child sexual
assault is much graver felony than rape and its perpetrators need severe deterrence through an
exclusive provision.

3.9. POOR DEFINITION OF PENETRATION

This provision states that mere penetration is sufficient for constituting rape. Section 375 of IPC
makes sexual intercourse and penetration mandatory for the constituting the crime of rape. It
is a flaw in itself as when so much weight is given to these words yet the la fails to define them
properly. Sub- clause (a) of Sec. 375 says about penetration of penis, sub- clause (b) also

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acknowledges the insertion of any object or part of body and sub- clause (c) again uses the word
penetration but its definition is nowhere mentioned in the statute.

The word penetration is very obscure and indefinite. Section 375 has tried to cover all forms of
rape including non- penile intercourse and heterosexual rape but it failed to properly define the
word penetration.

These are the terms that have undergone the most comprehensive change in the recent
amendment of 2013. Before the amendment of 2013, sexual intercourse was taken to mean the
penetration of the male genital organ into the female genital organ only. The courts interpreted
the term sexual intercourse as mere slightest or partial penetration of the male organ within the
labia majora or the vulva or pudenda is sufficient to constitute sexual intercourse.84 The courts
have stressed on the fact that the depth of the penetration is immaterial85. It is also laid down that
there is no requirement for injuries to be present on the private part 86 of the woman to constitute
rape. The hymen need not be ruptured87. Thus the essential condition of rape is penetration and
not ejaculation. Ejaculation without penetration will constitute as an attempt to rape and not rape
actually88. These conditions were expressly mentioned by the Supreme Court in the case of
State of Uttar Pradesh v Babulnath.89 The court in this case while delving into the essential
ingredients of rape made the observation that To constitute the offence of rape it is not at all
necessary that there should be complete penetration of the male organ with the emission of
semen and rupture of hymen. Even Partial or slightest penetration of the male organ within the
labia majora or the vulva or pudenda with or without any emission of semen or even an attempt
at penetration into the private part of the victim would be quite enough for the purposes of
section 375 and 376 of the Indian Penal Code. That being so it is quite possible to commit
legally the offence of rape even without causing any injury to the genitals or leaving any seminal
stain.90 An important issue of widening the ambit of section 375 to include the any bodily
penetration as rape was raised in the case of Smt Sudesh Jhaku v KCJ & Ors.91 The petitioners
wanted to increase the ambit of the definition to include penetration of any male body part into
any orifice in the womans body. This however was rejected by the court which was not in
favour of tinkering with the existing definition of the term. The court said that it was necessary to
prevent chaos and confusion in the society with regard to the changed definition of rape and
hence Section 375 should not be altered.

84
Madan Gopal Kakkad vs Naval Dubey (1992) 3 SCC 204;
85
Ibid.
86
Fateh Chand vs State of Haryana, (2009)15 SCC 543
87
Guddu vs State of Mp,(2007)14 SCC 454, 2006.
88
Ramkripal Shyamlal Charmakar vs State of Madhya Pradesh(2007) 11 SCC 265.
89
(1994) 6 SCC 29.
90
Wahid Khan v State of Madhya Pradesh (2010) 2 SCC 9
91
(1998) Cr LJ 2428

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It is also important to note that there is also an exception to section 375. The exception is known
as Marital Rape. Marital Rape is defined as non consensual sex with wife who is over the age of
15 years. The crux of the argument is that any coercive or non consensual sex with a wife over
the age the age of 15 years will not be considered as rape within the purview of section 375. The
immunity of the husband from getting convicted for marital rape arises from the assumption that
after marriage husband gets a lifelong consent for sexual intercourse with his wife. This is a very
problematic situation according to me because this is in contravention to the statute that states
that the minimum age for marriage of a woman should be 18 years. So if that is the case a man
cannot marry a wife who is of 15 years of age. I also dont agree with the fact that Marital Rape
is not considered to be rape because I dont agree with the concept of lifelong consent to sexual
intercourse just because a couple is married.

Punishments

Section 376 of the IPC stipulates the punishments that are awarded if a person is convicted of
rape. There is a minimum punishment of seven years and it can also be given with a fine and
extend to life imprisonment. However Section 376(2) provides the situations where the quantum
of punishment will be very high and it will include rigorous imprisonment which will not be less
than a term of 10 years.

The punishment for gang rape is provided under sub section 2 of section 376 IPC which
postulates that when a woman is raped by more than one person then each of the person will be
convicted of the crime of gang rape and the punishment would not be less than ten years of
rigorous imprisonment in such cases.

3.10. RECOMMENDATIONS
Examination of current laws and introducing tougher laws: National and state
legislatures should examine current rape laws and strengthen any deficiencies by
outlawing all aspects of sexual assault relating to women, children and homosexuals.
Conduct violating current prohibitions should be vigorously investigated and prosecuted.
Tougher sentences for the sexual assault of children and men may be needed. Also there
is an indispensable need to bridge the gap between enactment of laws concerning child
abuse and implementation of the same.
Regulatory measures to combat misuse of rape laws: Regulatory measures like
introduction of new provision for avoiding misuse of rape laws by female in order to
accuse innocent men should be introduced. Strict punishments should be awarded to
females who are convicted for misusing rape laws for their benefits. New laws should be

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 introduced to stop the violation of the fundamental rights of the men. As this causes a lot
of mental tension, trauma and societal embarrassment to the men and end up committing
suicide or getting blackmailed.
Burden of proof should not be wholly on accused: The tougher law shifted the burden
of proof to the accused to prove that the women had consented for the sexual intercourse
is wrong in many aspects as its much harder for a man to prove he had consensual sex
with the woman who accused him for rape later on. This should be made easier for the
men in some ways as lately there have been many cases where the girl after having
consensual sex converted it or threatened the men to convert it to rape post break up
which would make the men helpless as there are no laws for their protection in such
cases.
Repeal Section 377 of IPC: Section 377 of IPC which penalizes for unnatural offences
should be repealed immediately as her the victim who had been assaulted in also treated
as the culprit and this provision absolutely fails to serve it purpose as its not protecting
the victim but penalizing him. And sexual assaults to homosexuals should be recognized
in law immediately.
An awareness drive: We should make our political and legal system as well as our
society more aware about the actual cause which is giving rise to this type of situation.
Awareness programmes targeting lawmakers, advocated, legal researchers and self
governmental bodies, seminars and workshops for educating them about seriousness of
rape of all genders should be promoted as part of governmental policy. This will also help
to sensitize people about problems of misusing of present rape laws.
Sex education92: Sex education should be made compulsory in every educational
institution. It is shocking to see that out of the total survey samples, about 60% of it does
not know the meaning of the terms pedophilia93 and sodomy94. Education should be
provided on all levels as this is a serious issue which should be focused upon.

92
Sex Education, Wikipedia, (Last updated on December 19, 2015), <https://en.wikipedia.org/wiki/Sex_education>.
Sex education is instruction on issues relating to human sexuality, including emotional relations and
responsibilities, human sexual anatomy, sexual activity, sexual reproduction, reproductive health, reproductive
rights, safe sex, birth control and sexual abstinence. Wikipedia
93
Sexual feelings directed towards children.
94
A sodomy law is a law that defines certain sexual acts as crimes. The precise sexual acts meant by the term
sodomy are rarely spelled out in the law, but are typically understood by courts to include any sexual act deemed to
be "unnatural" or immoral. Sodomy typically includes anal sex, oral sex and bestiality.

Page 51 of 82
 The term rape should be replaced by the term sexual assault.
Sexual intercourse as contained in section 375 of IPC should include all forms of
penetration such as penile/ vaginal, penile/ oral, finger/ vaginal, finger/ anal and object/
vaginal and sexual assault on any part of body should be construed as rape.
Rape laws should be made gender neutral: As there are increasing sexual crimes
committed against men and young boys by female or men themselves. For instance,
custodial sexual abuse.
Exception (2) of Section 375 should be deleted: The 172nd Report of Law Commission
of India has recommended that marital rape should be falling under the category of felony
of rape. Forced sexual intercourse by a husband against the wife should be treated equally
as an offence just as any physical violence by a husband against the wife is treated as an
offence. On the same reasoning, 376A was to be deleted.
3.11. CONCLUSION

The criminal justice system of India needs reconditioning on the rape laws. Considering the
above flaws, the rape laws of India immediately need to be amended. The definition of rape
needs to be widened and should include acts of forced oral sexual intercourse, sodomy and
penetration by foreign objects in theory. The main focus of this paper is to attract the attention of
the lawmakers, advocates and legal researchers towards the misuse of the rape laws done. Lately,
there have been increasing cases reported about the accusation of false rape by the modern
women of these days who know the flaws of the rape laws and know how to use them in their
favor. It is high time to make laws in protection of the innocent men who have been falsely
accused for rape when all they did was consensual sex. This is very commonly found in the big
cities and done by college going students either to take revenge of a break up or for seeking
attention. The purpose of rape laws are not to save one gender and victimize the other, we should
understand that rape is a felony which is gender neutral. Rape laws of India say that rape can
only happen to women what about men being raped by other men? What about the homosexuals
being raped by other heterosexuals? Why does that fall under sodomy and not rape? This
immensely violates the right to equality and right to privacy of the citizens. The need of the hour
is to introduce gender neutral rape law and safeguard fundamental rights of men, young boys,
homosexuals and transgender.

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Thus, there is an urgent need to incorporate the above mentioned recommendations in the
definition of rape in order to ensure that there is no travesty of justice. Every law needs to be
updated with the pace society operates.

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 CHAPTER 4: FEMALE GENITAL MUTILATION

4.1. INTRODUCTION

This chapter explores the factors contributing to the persistence of Female Genital Mutilation
(FGM) among Indians and in other countries. Female genital mutilation (FGM) is a procedure
where the female genitals are deliberately cut, injured or changed, but where there's no medical
reason for this to be done.95 The urgency can be seen in the numbers as acc to UNICEF 2016,
Two hundred million girls and women in the world are estimated to have undergone FGM. 96
Therefore, the elimination of FGM is the key target under goal 5 of Sustainable Development
Goals.97 The visionary 2030 agenda of UNICEF says bout mobilizing to achieve the Global
Goals through the Elimination of FGM by 2030 must be achieved. Our goal is for the next
generation of women to have just heard about FGM in textbooks, but to never have experienced
it.
One of the most highly debated issues is the role that law should play in addressing a social
practice that is strongly anchored in cultural beliefs and norms. Another commonly posed
question is whether the language of human rights is meaningful and appropriate for the majority
of women who are affected by the practice of FGM. Our position is that FGM must be
acknowledged as a violation of the human rights of women and girlsit cannot be separated
from deep-seated and pervasive discrimination against women. Outright repulsion and a lack of
understanding risks making women feel that they are not understood. This can make it harder for
them to seek help or engage in dialogue on the issue. It is vital to carefully consider how women
experience the portrayal of FGM both in the media and in interactions with service providers.
Concerned professionals, such as health workers (nurses, midwives, antenatal and postnatal care
providers) and judicial and government officials (police officers, lawyers, judges, teachers and
social workers) can play an important role in combating FGM, but only if they are trained to deal
sensitively with those they are trying to help.

In spite of steps taken, the figures of FGM are still rising. This needs to be seen not as a womens
movement but as a global movement. Proper awareness camps should be promoted by the
government amongst parents, teachers, care-takers, hospitals and other stake- holders and data
should be collected and compared with the previous year. Workshops and focused researches
should be done in order to combat this problem globally and the guidelines of FGM policy
should be drafted and implemented immediately at all levels through UN human rights system.
Central & State Government in partnership with NGOs should provide medical health care to the

95
Female Genital Mutilation; NHS Choices; (Last updated n 16/06/2016); http://www.nhs.uk/Conditions/female-
genital-mutilation/Pages/Introduction.aspx
96
UNICEF, 2016; Female genital mutilation/cutting: a global concern. 2016
97
Media advisory: Two events to end FGM; Sustainable Development Goals;
http://www.un.org/sustainabledevelopment/blog/2016/02/media-advisory-two-events-to-end-female-genital-
mutilation/

Page 54 of 82
victims. Training of over 100,000 health practitioners on FGM prevention, response and care
should be done. Lastly, violators of human rights and international law must be put on fair trial
and punished for their crimes, because it is the lack of treatment of former issues that fuel the
conflicts of today.

4.2. CONCEPT OF FEMALE GENITAL MUTILATION

Female genital mutilation (FGM) is a psycho-socio-cultural phenomenon known to most as

simply female circumcision. Female genital mutilation (FGM)98 is the collective name given to
several different traditional practices that involve the cutting of female genitals.99 The procedure
is commonly performed upon girls anywhere between the ages of four and twelve as a rite of
passage. In some cultures, it is practiced as early as a few days after birth and as late as just prior
to marriage or after the first pregnancy.100

FGM is generally performed by a traditional practitioner who comes from a family in which
generations of women have performed the procedure. Interest in the practice has focused
primarily on the physical and psychological damage that FGM can cause. However, the act itself
is, at its essence, a basic violation of girls and womens right to physical integrity and violates a
number of recognized human rights. FGM is therefore increasingly being discussed and
addressed in the context of girls and womens rights, rather than as a strictly medical issue.

FGM/C, in many instances, is also perceived as a way to cleanse a girl from impure thoughts and
desire. The perception is that a girl who is circumcised does not get as aroused as one who is in
qalfa (meaning with a clitoral hood) or one whose clitoris is intact. Sexual desire in girls and
women is viewed as something from which they need protection. This perceived protection
extends beyond protection of the girl herself to the protection of the whole familys reputation. In
many places, the belief that the clitoral head is unwanted skin or that it is a source of sin,
which will make them stray out of their marriages are reasons that lie at the heart of a practice
that predates Islam but thrives amongst Bohras. Some women also referred to the clitoral hood as
haraam ki boti or immoral lump of flesh.101

4.2.1. TYPES OF FGM

According to the World Health Organization (WHO) female genital mutilation is classified into
four major types.

98
While the term female genital mutilation is commonly used by advocates of womens rights and health who
wish to emphasize the damage caused by the procedure, many organizations have opted to use local terminology or
more neutral terms such as female circumcision or female genital cutting.
99
NAHID TOUBIA, A CALL FOR GLOBAL ACTION 9 (2d ed. 1995).
100
Id.
101
Harinder Baweja, Indias Dark Secret, Hindustan Times. Available at:
http://www.hindustantimes.com/static/fgm--indias--dark-secret

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 Clitoridectomy: Partial or total removal of the clitoris (a small, sensitive and erectile part of
the female genitals) and, in very rare cases, only the prepuce (the fold of skin surrounding the
clitoris).
Excision: Partial or total removal of the clitoris and the labia minora, with or without excision
of the labia majora (the labia are "the lips" that surround the vagina).
Infibulation: Narrowing of the vaginal opening through the creation of a covering seal. The
seal is formed by cutting and repositioning the inner, or outer, labia, with or without removal of
the clitoris.
Other: All other harmful procedures to the female genitalia for non-medical purposes, e.g.
pricking, piercing, incising, scraping and cauterizing the genital area.

FGM is a societal problem that has many side effects and costs for all the people throughout the
community. To put it boldly, FGM does irreparable harm. For example, FGM can result in the
death of the young victims through severe bleeding and hemorrhagic shock, trauma, and
overwhelming infection and septicemia. As the United Nations Children Fund (UNICEF) notes,
in a word, FGM is traumatic.102 Many girls who survive the ordeal enter a state of shock induced
by the severe pain, and experience psychological trauma and exhaustion from screaming. Other
harmful effects include failure to heal, abscess formation, cysts, excessive growth of scar tissue,
urinary tract infection, painful sexual intercourse, increased susceptibility to HIV/AIDS,
hepatitis, and other blood- borne diseases, reproductive tract infection, pelvic inflammatory
diseases, infertility, painful menstruation, increased risk of bleeding and infection during
childbirth. In essence, peoples attitudes toward female circumcision need to be changed.

4.2.2. CAUSES BEHIND FGM

The four main vindications cited for FGM are as follows:103
Custom and tradition: Communities that practice FGM maintain their customs and
preserve their cultural identity by continuing the tradition. FGM is carried out for various
cultural, religious and social reasons within families and communities in the mistaken
belief that it will benefit the girl in some way (for example, as a preparation for marriage
or to preserve her virginity).
Womens sexuality: Society attempts to control womens sexuality by reducing their
sexual fulfillment.
Religion: It is important to note that FGM is a cultural, not religious, practice. In fact,
while FGM is practiced by Jews, Christians, Muslims, and members of other indigenous
religions in Africa, none of these religions requires it.

However, there are no acceptable reasons that justify FGM. It's a harmful practice that isn't
required by any religion and there are no religious texts that say it should be done. There are no

102
UNICEF, 2005.
103
Female Genital Mutilation: A matter of Human Rights; Center for Reproductive Rights.

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health benefits of FGM. FGM usually happens to girls whose mothers, grandmothers or extended
female family members have had FGM themselves or if their father comes from a community
where it's carried out.

It is estimated by United Nations Population Fund (UNFPA 2010) that 120 to 140 million
women have been subject to this harmful and dangerous practice of FGM and 3 million girls
continue to be at risk each year. UNFPA also says that the practice persists because it is
sustained by social perceptions, including the belief that girls and their families will face shame,
social exclusion and diminished marriage prospects if they forego cutting. The UNFPA is
supporting the Denniston and Milos assertion that social induction, including the prospect to
marry within ones culture, is considered important and people will do almost anything to be
part of their culture.

Rodriguez points out that circumcision was performed on women in the nineteenth and
twentieth century to cure sexual disorders like masturbation and disaffection.104 Doctors
corrected a clitoris in an unhealthy state using surgeries- removing the adhesion between the
clitoris and its hood, removing the hood (circumcision), or removing clitoris (clitoridectomy), in
order to correct the womans sexual instincts. Although FGM in the West did not go as
infibulations, it is nevertheless the type of FGM that is the most invasive and does the most
damage to womens genitalia and affects their health for the rest of their lives. This observation
is still interesting because it shows that not only was FGM tolerated in the West but was seen as
practical and healthy and was encouraged for womens sexual and mental health.

It is also shocking that, in the early 1990s, instead of decreasing, the incident of FGM seemed to
have accelerated in some areas of the West of the world due to many reasons, some of which are
mentions below. According to Hosken,105 the number of mutilated women and girls in Africa
and Middle East increased steadily due in part to population growth. Hosken also adds that
mutilation most often performed was clitoridectomy or excision without anesthetics and that this
dangerous operation results in permanent health damages: hemorrhage and shock, which may be
fatal, many infections and has resulted in the highest childbirth mortality recorded in areas
where FGM is practices.106
According to World Health Organization, the FGM procedures are mostly carried out on young
girls between infancy and age 15. In Africa about three million girls are at risk of FGM
annually. Between 100 and 140 million girls and women worldwide are living with the
consequences of FGM. In Africa, about 92 million girls ages 10 and above are estimated to have

104
Journal of History of Medicine
105
1993.
106
Female Genital Mutilation: Why does it Continue to be A Social and Cultural Force?; Nasra Abubakar;
https://etd.ohiolink.edu/rws_etd/document/get/toledo1353112338/inline

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undergone FGM.107 While it is perhaps impossible to widely generalize to the whole of Arica,
FGM is very prevalent in Somalia.

4.3. HISTORICAL BACKGROUND AND FIGHT AGAINST FGM

The history of FGM is not well known but the practice dated back at least 2000 years. It is not
known when or where the tradition of Female Genital Mutilation originated from. It was
believed that it was practiced in ancient Egypt as a sign of distinction amongst the aristocracy.
Some believe it started during the slave trade when black slave women entered ancient Arab
societies. Some believe FGM began with the arrival of Islam in some parts of sub-Saharan
Africa. Some believe the practice developed independently among certain ethnic groups in sub-
Saharan Africa as part of puberty rites. Overall, in the history, it was believed that FGM would
ensure womens virginity and reduction in the female desire.

Many commentators believe that the practice evolved from earliest times in primitive
communities that wished to establish control over the sexual behavior of women. The Romans
performed a technique involving slipping of rings through the labia majora of female slaves to
prevent them from becoming pregnant and the Scoptsi sect in Russia performed FGM to ensure
virginity.108

The practice is supported by traditional beliefs, values and attitudes. In some communities it is
valued as a rite of passage to womanhood. (For example in Kenya and Sierra Leone) Others
value it as a means of preserving a girls virginity until marriage, (for example in Sudan, Egypt,
and Somalia). In most of these countries FGM is a pre-requisite to marriage and marriage is vital
to a womans social and economic survival. It is believed by some African women that if their
daughters are not circumcised would not get husband. This (FGM) harmful tradition has been
guided by taboos from generation by generation.

FGM is rooted in culture and some believe it is done for religious reasons, but it has not been
confined to a particular culture or religion. FGM has neither been mentioned in the Quran nor
Sunnah. It has been highlighted that FGM was practiced in the United Kingdom and United
States by the Gynecologists to cure women of so-called female weakness The practice of FGM
continues within some communities in various form and even in the 20th century girls and
women are still subjected to this harmful tradition.

The beliefs surrounding the origins of female genital mutilation vary greatly. The predominant
school of thought is that FGM originated in ancient Egypt and then spread to East Africa, hence
the term 'pharaonic circumcision' coined by the Sudanese. The earliest record of the custom was

107
WHO, 2010.
108
Historical & Cultural; FGM National Clinical Group;
http://www.fgmnationalgroup.org/historical_and_cultural.htm

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made by Strabo, the Greek geographer and historian who reported excision on Egyptian girls in
25BC. It is believed that the practice was occurring some centuries before this however, and was
spread by dominant tribes and civilizations as a result of tribal, ethnic, and cultural
allegiances.109 In India, the custom of female genital mutilation (FGM), practiced by the
Dawoodi Bohra community is a criminal offence and if the community does not stop it
voluntarily, the government will bring in a law to ban the practice, Union women and child
development (WCD) minister Maneka Gandhi told Hindustan Times.110

Historically, FGM is undertaken by a traditional midwife or other senior woman within the
community (often the grandmother or an aunt; and occasionally a man with similar authority).
More recently however the procedure may have been delivered by a clinically trained operator,
perhaps a nurse, pharmacist, dentist or doctor. The procedure is carried out using special knives,
scissors, razor blades, or scalpels. Anesthetics and antiseptics are not generally used and pastes
containing herbs, local porridge, or ashes are frequently rubbed on to the wound to stop bleeding.
The girl is held down by female relatives to prevent her from struggling and there may be
unintended damage due to crude tools, poor light, and septic conditions. In urban areas however,
FGM is being performed more frequently in hospitals under anesthetic by trained doctors,
nurses, and midwives. In most cases, whether the operator is traditional or clinical, a fee is paid
and in some instances the FGM may even be part of a medical package following the delivery
of the infant who is to be mutilated.111

Traditionally FGM may have been (and in some communities still is) a very public ceremony
involving many girls (sometimes boys also due for circumcision) but now medically trained
practitioners may set up temporary clinics at the appointed time. In either case the event is
lucrative for the operators and the parents of girls undergoing the mutilation may feel reassured
that the risks have been removed? (In fact, although local anesthetic, sterile equipment and
antibiotics are used, it seems that clinically trained operators cut and excise more thoroughly.)

While the first documented attempts to stop FGM date back to the early twentieth century, it is
possible that undocumented initiatives were carried out by local populations prior to this time.
Early last century, colonial administrations and missionaries tried to ban the practice in some
African countries, but their efforts met with little success. In the 1940s and 1950s, the
governments of Sudan and Egypt passed laws prohibiting FGM, which were ineffective because
they were not accompanied by adequate information campaigns and outreach.

109
Female Genital Mutilation; Information for Health & Child Protection Professionals;
http://fgm.co.nz/background-to-fgm/
110
Govt will end female genital mutilation if Bohras Dont: Maneka Ganhi; Hindustan Times; (Last updated on May
29, 2017); http://www.hindustantimes.com/india-news/practise-of-female-genital-mutilation-should-be-banned-in-
india-maneka-gandhi/story-kQhNA4rIYOLQTurkN5zAAM.html
111
What is Female Genital Mutilation? An Introduction to the Issues and Suggested Reading; Hilary Burrage; (Last
updated on April 1, 2016); https://hilaryburrage.com/2016/04/01/female-genital-mutilation-an-introduction-to-the-
issues-and-suggested-reading/

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In the 1960s and 1970s, womens groups in many countries led campaigns to raise awareness
about the harmful effects of the practice. In addition, doctors in Sudan, Somalia, and Nigeria
who observed patients suffering from complications of FGM began to document the procedure
and to write about its clinical complications in medical journals. In 1979, WHO sponsored the
first Seminar on Harmful Traditional Practices Affecting the Health of Women and Children in
Khartoum (Sudan). This seminar ended in the rejection of a suggestion from the medical
participants that FGM be performed under favorable hygienic conditions.
The international community again addressed the human rights implications of FGM at a series
of international conferences: the World Conference on Human Rights in Vienna in 1993; the
International Conference on Population and Development (ICPD) in Cairo in 1994, and the
Fourth World Conference on Women in Beijing (Beijing Conference) in 1995.
Recent years have been marked by a change in approach in the information, education, and
communication campaigns directed at the practice of FGM. Innovative methods, such as the use
of music, theater, and films, have been increasingly employed to reach the population. These
methods have been incorporated into programs carried out by the health sector and schools.
Along with these advances, there has been a heightened focus on the manner in which the
practice of FGM violates womens rights, as illustrated by the recent adoption of the Protocol to
the African Charter on Human and Peoples Rights on the Rights of Women in Africa (African
Protocol on Womens Rights), which explicitly recognizes womens right to be free from FGM.
In addition, legal and human rights organizations have begun including information on FGM in
training programs on womens rights for lawyers, judges, and society at large. Increasingly, the
law is being used to combat the practice, and legislation criminalizing FGM has been adopted in
many countries.112

The WHO, UNFPA and many other international, legal and medical bodies all emphasize that
any type of FGM, however delivered, is contrary both to legislations almost everywhere, and
to globally recognized medical ethics. All FGM is harmful.

4.4. VIOLATION OF INTERNATIONAL HUMAN RIGHTS

Addressing FGM as a violation of international human rights law, places responsibility for the
practice with governments, who have a duty to ensure the enjoyment of human rights in their
jurisdictions.
Subjecting girls and women to FGM violates a number of rights protected in international and
regional instruments. These rights include the right to be free from all forms of gender
discrimination, the rights to life and to physical integrity, the right to health, and childrens right
to special protections.
1. Right to be free from Gender Discrimination:
The right to be free from gender discrimination is guaranteed in numerous international human
rights instruments. Article 1 of CEDAW takes a broad view of discrimination against women,

112
Supra note 94.

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defining it as any distinction, exclusion, or restriction made on the basis of sex which has the
effect or purpose of impairing or nullifying the recognition, enjoyment, or exercise by women,
irrespective of their marital status, on a basis of equality of men and women, of human rights and
fundamental freedoms in the political, economic, social, cultural, civil, or any other field.113
FGM is a practice aimed primarily at controlling womens sexuality and subordinating their role
in society. When a woman undergoes FGM, she is a victim of discrimination based on sex that
compromises the recognition and enjoyment of her fundamental rights and liberties. The impact
of FGM on womens human rights is recognized explicitly in the recently adopted African
Protocol on Womens Rights, which requires all states parties to prohibit and condemn all
forms of harmful practices which negatively affect the human rights of women and which are
contrary to recognized international standards.114
2. Right to Life and Physical Integrity115:
The rights to life and to physical integrity are considered core human rights. The right to life is
protected by a number of international instruments, including the Civil and Political Rights
Covenant. The Human Rights Committee, the body that monitors implementation of the Civil
and Political Rights Covenant, interprets the right to life as requiring governments to adopt
positive measures to preserve life.116 FGM can be seen to violate the right to life in the rare
cases in which death results from the procedure.
The right to physical integrity, while often associated with the right to freedom from torture,
encompasses a number of broader human rights principles, including the inherent dignity of the
person, the right to liberty and security of the person, and the right to privacy. Acts of violence
that threatens a persons safety, such as FGM, violate a persons right to physical integrity. Also
implicit in the principle of physical integrity is the right to make independent decisions in
matters affecting ones own body. An unauthorized invasion of a persons body represents a
disregard for that fundamental right. Violations of the right to physical integrity are most obvious
when girls and women are forcibly restrained during the procedure. No less compromising of
physical integrity is the subjection of non-protesting girls and women to FGM without their full,
informed consent.
3. Right to Health:
Under Article 12 of the Economic, Social and Cultural Rights Covenant, individuals are entitled
to enjoy the highest attainable standard of physical and mental health.117 The Committee on
the Elimination of Discrimination against Women (CEDAW Committee), the body that monitors
implementation of CEDAW, in its recent General Recommendation on Women and Health,
recommended that governments devise health policies that take into account the needs of girls
and adolescents who may be vulnerable to traditional practices such as FGM.

113
CEDAW, supra note 12, art. 1.
114
Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa, 2 nd Ordinary
Sess., Assembly of the Union, adopted July 11, 2003, art. 5 [hereinafter African Protocol on Womens Rights].
115
Supra note 94.
116
Human Rights Committee, General Comment No. 6: The right to life (art. 6), para. 5 (1982).
117
Economic, Social and Cultural Rights Covenant, supra note 11, art. 12.

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The complications associated with FGM often have severe consequences for a womans physical
and mental health. But even in the absence of complications, where FGM results in the removal
of bodily tissue necessary for the enjoyment of a satisfying and safe sex life, a womans right to
the highest attainable standard of physical and mental health has been compromised. In
addition, subjecting a person to health risks in the absence of medical necessity should be viewed
as a violation of that persons right to health.
4. Rights of the Child:
Because children generally cannot adequately protect themselves or make informed decisions
about matters that may affect them for the rest of their lives, international human rights law
grants children special protections. The right of the child to these protections has been affirmed
in the Childrens Rights Convention. Article 1 defines a child as a person below the age of 18
unless majority is attained earlier under the law applicable to the child.118 Article 3 affirms that
the best interests of the child shall be a primary consideration.119 While this principle may be
broadly interpreted to accommodate varying cultural views on what constitutes a childs best
interest, such interpretations should be consistent with the Conventions other specific
protections.
The international community has generally regarded FGM as a violation of childrens rights
because FGM is commonly performed upon girls between the ages of four and twelve, who are
not in a position to give informed consent. The Childrens Rights Convention requires States
Parties to take all suitable effective measures to abolish traditional practices that are prejudicial
to the health of children.120 The concern to stop traditional practices that are harmful to health is
also evident in the African Charter on the Rights and Welfare of the Child (the African Charter),
which was adopted by the Organization for African Unity in 1990.121

4.4.1. OTHER HUMAN RIGHTS VIOLATION122

The right to culture, the rights of minorities, and (despite the absence of a religious duty to
practice FGM) the right to religious freedom are often raised to suggest that FGM should not be
subject to government interference. Some have argued that the right to enjoy ones own culture
and to choose ones own religion should not be subject to government intervention, and that
government action to prevent FGM is an intolerable intrusion. This view is not, however,
supported by international human rights law, which limits these rights to protect individual
human rights, health, and safety. It is up to the government to decide how to put an end to FGM
while respecting the rights of minorities and the rights to culture and to freedom of religion.

118
Childrens Rights Convention, supra note 13, art. 1.
119
Id. art. 3.
120
Id. art. 24(3).
121
African Charter on the Rights and Welfare of the Child, adopted July 11, 1990, art. 21, OAU Doc. CAB/
LEG/24.9/49 (1990) (entry into force November 29, 1999) [hereinafter African Charter].
122
Supra note 94.

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4.5. POSITION IN INDIA

Recent testimonies and initiatives by Bohra women indicate that FGM is practiced widely. In
2015 a group of women launched Sahiyo meaning female friend, an online platform that aims
to create a safe, women-supported space for Bohra FGM survivors to share their personal stories
and to lobby support via a petition for a law to ban FGM in India. As there is no law in India
banning FGM, a survey by Sahiyo indicates that the ratio of Bohra girls who have been subjected
to FGM could be as high as 80 per cent. The survey also includes Bohra women in the US, UK
and Australia. After India, the second highest proportion of women in the survey, 31 percent, are
in the US.

The Bohras practice Type-I FGM which involves the partial or complete removal of the clitoris
or clitoral hood. The clitoris is referred to as the Haram ki boti or sinful piece of flesh a
recognition of its biological role in womens orgasms and libido. Even though FGM is called
Khatna or circumcision, which is a coming of age social ritual and fervently discussed and
debated among women in other communities, what makes it odd among the Bohras is that it
appears to be an extremely clandestine procedure. Aarefa Johari, one of the co-founders of
Sahiyo says it is never talked about even among girls and women. Testimonies from Bohra
women, discussed in agonizing details, show the procedure is carried out by impoverished
women practitioners, (who probably just need the income) in unhygienic environments, using a
razor blade without anesthesia. A public petition to the Indian government by the advocacy
group Speak Out on FGM to outlaw FGM in India has garnered more than 80,000 signatures.
The groups founder Masooma Ranalvi, a Bohra FGM survivor, who has also been pushing for
the UN to recognize FGM in India, has launched a second petition to the UN . Inclusion in
UNFPA and UNICEFs Joint Programme on the eradication of FGM would give Bohra activists
the much needed global support to nudge the Indian government into action.123

FGM is not only illegal as this report demonstrates but is also unconstitutional as it
disproportionately impacts the girl child. It is also prohibited by international conventions which
India has signed. The concept of "Khatna" involves cutting the tip of a girl's clitoris when she is
6-7 years old. It goes on to explain that though various socio-cultural reasons have been given to
justify the practice, it is essentially rooted in the belief that female sexuality and desired need to
be controlled and thereby, reduced. The report states: "The perception is that a girl who is
circumcised does not get as aroused as one who is in qalfa (meaning with a clitoral hood) or

123
Indias Female Genital Mutilation: A Thousand year old secret; OpenDemocracy; (Last updated on February 8,
2017); https://www.opendemocracy.net/5050/rita-banerji/indias-female-gential-mutilationj-thousand-year-old-secret

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one whose clitoris is intact." The practice is also viewed as a cleansing procedure to purge the
girls mind of impure thoughts and desires.124

4.6. LEGAL FRAMEWORK IN INDIA

India is a signatory of all the International conventions on the violation of the human rights of
the women and children and has ratified the same. It is a signatory of United Nations Convention
on the Rights of the Child, 1989 (UNCRC), Convention on the Elimination of all forms of
Discrimination against Women, 1979 (CEDAW), ICESR, UDHR and several other conventions
which criminalizes Female Genital Mutilation.

Declaration on Elimination of Violence against Women defines violence against women

under Article 2 as: Physical, sexual and psychological violencedowry-related violence,
marital rape, female genital mutilation and other traditional practices harmful to women, non-
spousal violence related to exploitation.

In India, various forms of violence against women are dealt within the Indian Penal Code, 1860
(IPC). Being a criminal law, the focus is on penalising the accused/perpetrator of the crime.
Section 319 to 326, IPC address varying degrees of hurt and grievous hurt. According to the
WHO, the immediate complication of FGM/C can include excessive bleeding (hemorrhage),
genital tissue swelling, and wound healing problems, injury to surrounding genital tissue, shock
and death while the long term consequences include urinary problems, vaginal problems,
menstrual problems, sexual problems etc. and thus persons undertaking FGM/C may be
prosecuted under the IPC.125

Particularly, Sections 324 and 326, IPC provide penalties of imprisonment and fines for
voluntarily causing hurt and voluntarily causing grievous hurt.
Section 324 of IPC: Voluntarily causing hurt by dangerous weapons or means.--
Whoever, except in the case provided for by section 334, voluntarily causes hurt by
means of any instrument for shooting, stabbing or cutting, or any instrument which, used
as a weapon of offence, is likely to cause death, or by means of fire or any heated
substance, or by means of any poison or any corrosive substance, or by means of any
explosive substance or by means of any substance which it is deleterious to the human
body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall
be punished with imprisonment of either description for a term which may extend to three
years, or with fine, or with both.

124
FGM: Report recommends separate law, sensitization to eradicate practice in India; Firstpost.; (Last updated on
May 26, 2017); http://www.firstpost.com/india/female-genital-mutilations-report-recommends-separate-law-
sensitisation-to-eradicate-practice-in-india-3478099.html
125
See:http://www.who.int/mediacentre/factsheets/fs241/en/

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 Section 326 of IPC: Voluntarily causing grievous hurt by dangerous weapons or
means.--Whoever, except in the case provided for by section 335, voluntarily causes
grievous hurt by means of any instrument for shooting, stabbing or cutting, or any
instrument which, used as a weapon of offence, is likely to cause death, or by means of
fire or any heated substance, or by means of any poison or any corrosive substance, or by
means of any explosive substance, or by means of any substance which it is deleterious to
the human body to inhale, to swallow, or to receive into the blood, or by means of any
animal, shall be punished with imprisonment for life, or with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.

Former Director of the Central Bureau of Investigation (CBI), R.K. Raghavan, has noted that
though FGM/C is not explicitly an offence under the IPC, on a complaint, the police are
obligated to register a case under Section 326of the IPC. 126 Section 3 ofthe Protection of
Children from Sexual Offences Act, 2012 (POCSO Act) addresses penetrative sexual assault
by any person on any child, inter alia defines it as insertion of any object into the vagina of the
girl.
Section 3 (b) of POCSO: Penetrative sexual assault.-A person is said to commit
"penetrative sexual assault" if-(b) he inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra or anus ofthe child or makes the
child to do so with him or any other person

It is established precedence that penetration in sexual offences need not be complete penetration.
In fact, Explanation 1 of Section 375, IPC categorically states that the term vagina includes labia
majora. FGM/C, which requires insertion of a sharp object into the vagina of a child, may be
covered under Section 3, POCSO Act read with Explanation 1 of section 375 IPC.
The Goa Childrens Act, 2003 (GC Act) under Section 2(y)(i) defines Sexual assault As
different types of intercourse; vaginal or oral or anal, use of objects with children, And
deliberately causing injury to the sexual organs of children,...
FGM/C depending on facts and circumstances may fall to be prosecuted under any one of these
provisions.
The National Policy for Children, 2013(NPC) affirms that: the State is committed to taking
affirmative measures --legislative, policy or otherwise --to promote and safeguard the right of
all children to live and grow with equity, dignity, security and freedom, especially those
marginalised or disadvantaged; to ensure that all children have equal opportunities; and that no
custom, tradition, cultural or religious practice is allowed to violate or restrict or prevent children
from enjoying their rights."

126
Rasheeda Bhagat, Ban this barbarous practice!, Hindu Business Line, July 29, 2014. Available at:
http://www.stopfgmmideast.org/india--ban--this--barbarous--practice/

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The NPC recognises and prioritises the right to health, survival, development and protection as
inalienable rights of children. With regard to protection, the NPC recognizes that a safe, secure
and protective environment is a precondition for the realisation of all other rights of children.
While the practice of carrying out FGM/C may qualify as a form of hurt or grievous hurt
under the IPC and a crime under Section 3 of the POCSO Act being carried out with an
instrument used for cutting and may be addressed under the existing laws of sexual assault, child
sexual abuse and domestic violence, addressing this practice requires a more holistic approach.

4.7. CONCLUSION

While it has been demonstrated above that some provisions exist in Indian law for criminal
action against any form of hurt, there is no specific mention of FGM/C in our laws and the
practice largely goes unnoticed. It has also been seen, internationally, that it has proved
necessary to have a specific law dealing with the subject, which addresses not only prosecution
but also prevention, education, awareness building, relief and rehabilitation. Thus, the discussion
here is conclusive that a separate law on FGM/C is necessitated for similar reasons, that is, to
expose the problem and address it as a harmful criminal practice and not as an acceptable
religious practice.

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 CHAPTER V: SEXUAL AND REPRODUCTIVE RIGHTS

5.1. INTRODUCTION

The face of poverty is female. It is estimated that women account for two-thirds of the 1.4 billion
people currently living in extreme poverty127 and make up 60 per cent of the 572 million working
poor in the world.128 Poverty exacerbates gender inequalities, and can combine to make a huge
difference in peoples lives between well-being and ill health, and sometimes between life and
death.129 The relationship between gender inequality and poverty can have specific implications
for the sexual and reproductive health and rights of girls and women. Not only does it translate
into significant gaps in opportunity and capability, it can lead to greater vulnerability to gender
related ill health, sexual and gender based violence, harmful traditional practices and
disproportionate shouldering of unpaid care work. For example, in a UNICEF global study of
early and forced marriage, the practice was most common among the poorest 20 per cent of the
population in all the countries analyzed.130 The causes and consequences of early marriage are
intrinsically linked and include low levels of education, health and autonomy for girls, poverty
and low socioeconomic status.

Sexual and reproductive health and rights are critical for empowering women and girls and
advancing gender equality both to realize their rights and their access to health services. The
ability of women and girls to exercise their sexual and reproductive rights to make free and
informed choices about their sexual and reproductive life, and about whether and when to have
children, is a central component of gender equality. At their core, sexual and reproductive health
and rights mean that individuals should have the right and the means to make decisions about
their reproductive lives and sexuality, free from violence, coercion and discrimination.

Sexual and reproductive health and rights are important rights in themselves, but can also greatly
enhance possibilities for empowering girls and women and for achieving gender equality. We
examine how sexual and reproductive health and rights interventions can have positive and
lasting impacts not only on the health outcomes of girls and women, but can also enable
womens access to opportunities across social, economic and political life. The human rights of
girls and women across social, economic and political life are deeply intertwined and indivisible.
For example, where a girl is not able to go to school and receive an education, this can have a
knockon effect on her future work opportunities. Girls with no education are three times more
likely to marry before the age of 18 than those with secondary or higher education.10

127
Women Deliver. Available at <http://www.womendeliver.org/knowledgecenter/factsfigures/ genderequity/>
Accessed 14 November 2014.
128
International Labour Organization (2009) Global Employment Trends for Women. p.43.
129
Ilkkaracan P and Jolly S (2007) Gender and Sexuality: Overview Report. Brighton, UK: BRIDGE, University of
Sussex. pp.18.
130
UNICEF (2005) Early Marriage: A Harmful Traditional Practice. A Statistical Exploration. Available at
<http://www.unicef.org/publications/files/Early_Marriage_12.lo.pdf> Accessed 14 January 2015.

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Womens empowerment is closely related to gender equality, but empowerment goes beyond
simply addressing womens status relative to mens and includes their power to make choices
and their ability to control their own destiny.131

5.2. INTERNATIONAL CONVENTIONS

Reproductive right rest on the right of all couples and individuals to decide freely and
responsibly the number, spacing and timing of their children, to have the information and means
to do so, and the right to attain the highest standard of sexual and reproductive health; including
the right to make decisions concerning sex and reproduction free of discrimination, coercion and
violence.132 Gender discrimination is an important factor which deprives women of their
reproductive rights. The Universal Declaration of Human Rights ( United Nations, 1948)
proclaimed the right of all human beings to live in conditions that enable them to enjoy good
health and health care (art. 25).
Sexual rights are an important part of reproductive rights which include "The right to sexual
freedom, autonomy, integrity, and safety of the sexual body. It also includes the right to sexual
privacy, equity, sexual pleasure, emotional sexual expression, the right to sexually associate
freely, right to make free and responsible reproductive choices, the right to sexual information,
education and the right to sexual health care."133
Under Article 12 of the Economic, Social and Cultural Rights Covenant, individuals are entitled
to enjoy the highest attainable standard of physical and mental health.134 The Committee on
the Elimination of Discrimination against Women (CEDAW Committee), the body that monitors
implementation of CEDAW, in its recent General Recommendation on Women and Health,
recommended that governments devise health policies that take into account the needs of girls
and adolescents who may be vulnerable to traditional practices such as FGM.
The complications associated with FGM often have severe consequences for a womans physical
and mental health. But even in the absence of complications, where FGM results in the removal
of bodily tissue necessary for the enjoyment of a satisfying and safe sex life, a womans right to
the highest attainable standard of physical and mental health has been compromised. In
addition, subjecting a person to health risks in the absence of medical necessity should be viewed
as a violation of that persons right to health.
Our study indicates that there is a need to focus on the protection of reproductive rights of
women in our society. These findings have important policy implications for reducing morbidity
level from highly prevalent depression among women. Knowledge and appreciation of lack of

131
Kabeer N (1999) The Conditions and Consequences of Choice: Reflections on the Measurement of Womens
Empowerment. UNRISD Discussion Paper 108. Geneva: United Nations Research Institute for Social Development.
132
Summary of the programme of action. In: International Conference on Population and Development. Cairo:
UNDP; 1994
133
World Association for Sexology: Declaration of Sexual Rights. 14th world congress of sexology, Hong Kong.
1999
134
Economic, Social and Cultural Rights Covenant, supra note 11, art. 12.

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autonomy in reproductive matters and its association with depression could possibly make a
difference in reducing the incidence of depression among women, which is high in Pakistan.
Families and communities should be educated regarding the importance of women's autonomy in
her marriage decision. Women should be made aware of their reproductive and sexual rights, and
married women should be asked screening questions regarding domestic abuse and marital rape.
Clinicians can support positive mental health outcomes through early identification of women
who may be at risk for psychological distress as a result of domestic violence and denial of other
reproductive rights and could refer them for individual or marital counseling. Especially in
couples where there is communication problem, physicians can help to provide counseling to
bridge this gap. Primary care physicians should be trained to identify depression and provide
appropriate guidance and counseling not only to the women at risk but also to their families
about the predisposing factors for depression, particularly the reproductive rights, which is in
fact a human right.

5.3. HEALTH IMPLICATIONS OF FGM AND MARITAL RAPE

The practice of FGM is intended to prevent female sexual desire, thereby protecting a girls
virginity for her future husband. Control over girls or womens sexuality through FGM is
accepted in African communities in which the practice is high. When FGM is performed on a
girl or woman, full enjoyment of her rights and liberties are, in effect, taken away from her (
United Nations Childrens Fund, 2005). Sexual function is adversely affected by FGM: Sexual
quality of life is signicantly lower for those women who have undergone FGM compared with
those who have not ( Alsibiani & Rouzi, 2010; Andersson, Rymer, Joyce, Momoh, & Gayle,
2012). For example, women who have undergone FGM have difficulty achieving orgasm by
direct stimulation of the external clitoris. Surgical debulation releases the inbulation scar and
appears to improve sexual functioning but not orgasm (Paterson, Davis, & Binik, 2012).135

5.3.1. PHYSICAL HEALTH OUTCOMES

Bleeding: FGM damages arteries and veins. Primary hemorrhaging during the operation
is unavoidable (secondary hemorrhaging may appear later if, for example, the wound
becomes infected). Serious bleeding can lead to shock and even death. Shock. Shock may
arise not only from bleeding, but also from pain and fear. It can prove fatal.
Infection and Septicaemia: In less than optimal conditions, such as when FGM is
performed in closed, poorly lit spaces with instruments that have not been sterilized,
infection is a likely outcome of any operation. The practice of binding a patients legs

135
Female Genital Mutilation Is a Violation of Reproductive Rights of Women: Implications for Health
Workers. Available from:
https://www.researchgate.net/publication/288686137_Female_Genital_Mutilation_Is_a_Violation_of_Reproduc
tive_Rights_of_Women_Implications_for_Health_Workers [accessed Oct 07 2017].

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 after FGM aggravates any infection by preventing drainage from the wound. Infection
may spread inward, penetrating the vagina and passing into the uterus and ovaries,
causing chronic pelvic infection and infertility. Development of tetanus may cost the
patient her life. Septicaemia, also potentially fatal, is a possible complication from
serious infection.
Urine Retention: After FGM, urination may be difficult or impossible. The urinary
canal may be partially or entirely obstructed. Pain or fear of pain during urination may
prevent natural ow. Edema (the presence of an excessive amount of uid in or around
cells, tissues, or serous cavities of the body) or other wound reactions (for example,
granulation tissue or brosis) may contribute to obstruction.
Menstrual Problems: Normal menstruation may be hindered by partial or total
occlusion of the vaginal opening. This may result in dysmenorrhea (painful menstrual
periods); painful menstruation; or, in acute cases, hematocolpos, the accumulation of
menstrual blood in the vagina and uterus. Distension of the abdomen induced by the
accumulation of menstrual blood, together with the lack of any outward evidence of
menstruation, may prompt suspicion of pregnancy. In a society where men guard the
honor of their families, should suspicions of extramarital relations arise, the unfortunate
woman may be put to death.
Difficult Micturition: Obstruction of the urinary opening or damage to the urinary canal
may, in time, cause several complications, including painful urination. Urinary tract
infections can lead to a similar state.
Urinary Tract Infection: Inbulations create a bridge of skin that obscures the opening
of the uri-nary canal. The normal ow of urine is deected, and the area remains
constantly wet and susceptible to bacterial infection. Such infection may spread
throughout the urinary tract, affecting both the bladder and the kidneys.
Calculus Formation: Menstrual debris or urinary deposits in the vagina or behind the
bridge of skin created during FGM may calcify, forming a kind of stone or stones.
Calculus, or stone formation, is also possible, encapsulating foreign matter in the vagina.
Calculus formation may cause stulae.
Fistulae and Incontinence: A stula is a canal or connection between the urinary tract
and vagina (vesicovaginal) or between the rectum and vagina (rectovaginal), which
causes incontinence.

Other physical effects of spousal rape are the same effects suffered by marital rape/ FGM victim
including:

Injuries to the vaginal and anal areas

Scrapes, cuts
Bruises and soreness
Torn muscles
Fatigue

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 Vomiting
Broken bones
Injuries caused by weapons
Miscarriages or stillbirths
Contraction of sexually-transmitted infections, including HIV

5.3.2. PSYCHOLOGICAL OUTCOMES

FGM and marital rape have a number of negative psychological outcomes that are extremely
harmful for girls and women. For example, FGM could lead to depression, anxiety, and
neuroses136. Feelings of incompleteness, fear, inferiority, and suppression among women who
have undergone FGM are higher compared with women who have not undergone FGM. They
are also at higher risk of psychiatric and psycho-diseases, which are characterized by physical
symptoms resulting from psychological factors, usually involving a system of the body such as
the gastrointestinal or genitourinary system ( Utz-Billing & Kentenich, 2008). Comparative
clinical studies found that circumcised women, compared with un-circumcised women, showed a
signicantly higher prevalence of posttraumatic stress disorder (PTSD) and other psychiatric
disorders. PTSD was accompanied by memory problems ( Behrendt & Moritz, 2005; Elnashar &
Abdelhady, 2007), feelings of loss of trust, a prevailing lack of bodily well-being, post-traumatic
shock, and depression among women and girls who had undergone an FGM procedure ( Lax,
2000). Physical health outcomes also contribute to increases in psychological stress. More
research is needed to fully understand the psychological out-comes of FGM and marital rape.
Other outcomes are:

Shock,
anxiety and intense fear
Depression
Suicidal ideation
Acute and post-traumatic stress disorder (PTSD)
Fundamental loss of trust

5.4. RECOMMENDATIONS

Medical ethics standards should make it clear that the practice of FGM upon children or non-
consenting women violates professional standards. Medical practitioners who engage in the
practice should be subject to disciplinary proceedings and should lose their licenses to work in
the medical field. Governments should ensure appropriate access to reproductive health services,
whether or not a woman has undergone FGM. Women who have undergone FGM should have
access to the information and health care they need. In addition, reproductive health care services
can be a source of information for women about their own reproductive health, making it easier

136
( Baasher, 1979; Khalaf, 2013; Rushwan, 2013)

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to understand the harmful consequences of FGM. A better understanding of these health effects
may make women less likely to choose to undergo FGM or to encourage others to do so.

International legal standards establish not only that a woman has the right to reject FGM, but that
governments must take action to ensure that women and girls are empowered to make such a
choice. In taking action against FGM, the measures that governments employ should themselves
conform to accepted human rights norms. The recommendations in this chapter are intended to
guide governments toward compliance with those norms. By adopting some of the
recommendations presented, a government could take an important step toward promoting the
well-being of its people.

5.5. CONCLUSION

The facts are stark: gender inequality is pervasive and women and girls remain
disproportionately discriminated against across social, economic and public life.

However, the diverse lives of women and girls around the world show the route to a different
future. Despite widespread gender inequality, women and girls are making ends meet, they are
caring for their families, pursuing work opportunities, organizing collectively and mobilizing for
change. Ensuring universal access to sexual and reproductive health and rights for all is crucial to
making this change happen.

For gender relations to be transformed, the structures that underpin them have to change. Women
and girls should be able to lead lives that are free from violence; they should have opportunities
to expand their capabilities, and have access to a wide range of resources on the same basis as
men and boys. They should have a real presence and voice in the full range of institutional for a
where decisions are made that shape their lives and the functioning of their families and
societies.

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 RECOMMENDATIONS
Our recommendations and a detailed road map based on our findings and the research are as
follows:
I. LEGAL MEASURES

Ratification and execution of International Human Rights Treaties: Many nations on

the planet are gatherings to CEDAW yet many (like Somalia, Sudan and the United
States) out of them are definitely not. Forty nations have approved the Children's Rights
Convention and two (Somalia and the United States) have not. Government sanction of
bargains is just an initial move toward social change. Consequent national-level move
must be made to guarantee that all current household enactment is good with the
sanctioned bargain. Future enactment should likewise be checked on to decide its
similarity with the bargain. In a few conditionsas on account of FGMgovernments
may need to establish laws and receive arrangements to address broad practices that
damage the standards maintained in the bargain. At the point when governments endorse
human rights arrangements, it is imperative that they not undermine the power of these
instruments by entering reservations. Reservations are articulations made by governments
proclaiming their aim not to be bound by specific arrangements of a settlement.
Reservations made by governments ought to be predictable with the "question and
purpose"137 of the settlement. Reservations that are so expansive as to undermine the
expected power of the arrangement are viewed as invalid under worldwide law.

Ensure Constitutional Protection of Rights of Women and Girls: Most nations, as

gatherings to worldwide human rights settlements, have recognized an obligation to
shield ladies and young ladies from hones that undermine their physical trustworthiness.
This obligation ought to be revered in national-level legitimate instruments, including the
constitutiona country's law of most astounding specialist. All enactment and
government activity should adjust to the standards set up in a country's constitution.
Governments ought to guarantee that their constitutions contain arrangements that
assurance the privileges of ladies. These arrangements ought to be sufficiently expansive
to be deciphered to ensure ladies against FGM and marital rape. Where constitutions
don't contain arrangements that might be unmistakably translated to advance sex fairness,
governments ought to consider altering their constitutions. Governments ought to
likewise consider receiving an established arrangement particularly tending to customary
traditions unsafe to ladies' wellbeing. Protected measures that guarantee the privilege of
ladies and young ladies not to experience FGM and marital rape make a solid legislative
commitment to progress in the direction of ceasing the training. Established securities

137
. Vienna Convention on the Law of Treaties, adopted May 22, 1969, art. 2(d), U.N. Doc. A/Conf.39/27 (1969),
reprinted in 8 I.L.M. 679.

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 additionally improve the likelihood of drawing in legal bodies in these endeavors. In any
event, sacred insurances speak to an unmistakable administrative responsibility regarding
securing the privileges of ladies and young ladies, which could add to the authenticity of
a creating social development.

Examination of current laws and presenting harder laws: National and state
assemblies ought to inspect current laws and fortify any insufficiencies by prohibiting all
parts of youngster erotica including creation, dissemination, and ownership offenses.
Direct disregarding current preclusions ought to be overwhelmingly examined and
indicted. Harder sentences for the creation of kid erotic entertainment might be required.
Additionally there is a crucial need to conquer any hindrance between institution of laws
concerning tyke mishandle and execution of the same.

Embrace Reforms to Promote Equality of the Sexes: Since empowering ladies to settle
on the decision to surrender FGM and marital rape requires a change of ladies' status,
governments should change every single existing law that fill in as hindrances to ladies'
correspondence. Much of the time, this requires changing family laws, for example, those
that identify with marriage, separate, youngster guardianship, and legacy, and also laws
identifying with property. In getting nations, laws ought to counteract victimization
migrants and different minorities, and perceive the privileges of outsider ladies. For
instance, ladies whose movement status is endless supply of their husbands ought to be
allowed autonomous status after a specific timeframe or upon an appearing of viciousness
with respect to the mate. Extra legitimate changes guaranteeing break even with portrayal
of ladies in the general population area would help advance uniformity of the genders.

Deliberately consider any Application of Criminal Sanctions for FGM and marital
rape: Under no conditions should governments criminalize the act of FGM and conjugal
assault without a more extensive legislative methodology to change singular conduct and
social standards. For nations that do choose to force criminal approvals for the act of
FGM, the accompanying contemplations ought to be considered. New and proficient
enactments ought to be drafted and executed for FGM and conjugal assault as there is no
enactment that independently criminalizes conjugal assault and FGM. Marital rape is
even utilized as exclusion in the assault law which is in itself a colossal proviso in the
legitimate arrangement of India. In this manner, FGM and conjugal assault ought to be
promptly criminalized. Another enactment with an unmistakable definition, discipline,
assent of the casualty, consequences for minorities ought to be executed.

Other Legal Protections against FGM and Marital rape: Notwithstanding criminal
indictment, there are various other lawful systems that can be utilized to dishearten FGM
and marital rape. For instance, FGM and marital rape can be perceived as damage that

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 offers ascend to a common claim for harms or different cures. Common lawful activities
are conceivably viable methods for affecting individual conduct and shielding young
ladies and ladies from FGM. Numerous nations have kid security laws that could possibly
be connected to keep young ladies from experiencing FGM. Not at all like criminal laws,
are children assurance laws concerned less with rebuffing guardians than with
guaranteeing that a kid's advantages are served. These laws allow government
intercession when a kid is manhandled by her folks or gatekeeper. They give components
to expelling children from parental authority when there is motivation to trust that
manhandle has happened or is probably going to happen. Where FGM and marital rape
are viewed as types of mishandle, these laws may help keep young ladies from
experiencing the strategy.

Collect Data and Disseminate and Information Regarding FGM: NGOs ought to
guarantee that the data they have in regards to FGM and marital rape in their nation is as
entire as would be prudent. NGOs attempting to end the act of FGM should gather
information all the time on such issues as predominance rates of FGM; who is influenced
by the training; FGM and marital rape-related exercises at various levels of governments;
and the lawful system and approaches. NGOs may then decide the procedures by which
they will introduce and spread this data, which might be influenced accessible in
distributions, to short instructions papers and, where fitting, on the Internet.

II. REGULATORY MEASURES

An awareness drive: We should make our political system as well as our society more
aware about the actual cause which is giving rise to this type of situation. The
government as well as educational institutions must evolve a comprehensive women and
child safety policy in India at the grass root level, with emphasis on safety measures for
violence against women. Awareness programs targeting teachers, parents, NGOs and
other caregivers, as well as local self governmental bodies, camps for children and
women educating them about their human rights and about female genital mutilation
should be promoted as part of governmental policy. Workshops and awareness camps
should also be promoted against marital rape. This will also help to sensitize people about
problems of child trafficking. Thus, awareness should be created so that the mothers,
teachers, aunts etc. instead of promoting FGM and marital rape from the fear of the
society should instead collectively rebel for the same. It should be aimed that the
daughters from next generation should only read about marital rape and FGM in
textbooks and do not experience it.

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 Sex education138: Sex education should be made compulsory in every educational
institution. Education should be provided on all levels as this is a serious issue which
should be focused upon. It is shocking to see that out of the total survey samples; about
60% of it does not know the prevalence of marital rape and female genital mutilation. It
is ironical that India is worlds largest producer of condoms yet women are unaware of
marital rape and female genital mutilation as a gross violation of their human, sexual and
reproductive rights. In India, people should stop taking offence by pre- marital sex and
other not so important issues and starting getting offended by marital rapes and brutal
female genital mutilation as these are some more relevant issues which is causing sever
health implications to the majority of the women. Thus, mothers and teachers should
educate their daughters about marital rape and female genital mutilation and take a stand
against the same.

Training to Health Professionals: Medicinal morals principles should influence it to

clear that the act of FGM upon kids or non-consenting ladies disregards proficient
measures. Restorative professionals who participate in the training ought to be liable to
disciplinary procedures and ought to lose their licenses to work in the therapeutic field.
Medicinal professionals should assemble a conference with the spouses/relatives of the
ladies who are experiencing serious wellbeing suggestions from marital rapes and FGM
and do appropriate advising of the same.

Promotion of NGOs: NGOs ought to be allowed to arrange and work without

government obstruction. NGOs assume an essential part in ceasing the act of FGM and
marital rape. They ought to be allowed to screen government endeavors to dispose of
FGM and marital rape and to consider governments responsible for inability to satisfy
their universal commitments. Likewise, governments should back NGOs occupied with
making programs intended to forestall FGM and marital rape.

Maximum use of Media: At the point when the media are government-possessed, or
subject to extensive government impact, these outlets ought to be utilized as instruments
to encourage open discourse on FGM, marital rape and on the privilege of ladies and
young ladies to be allowed to choose whether or not to experience FGM. Media ought to
be picked as an instrument to make mindfulness everywhere and acquire a change the
attitudes of the general population and redesign the reasoning of this patriarchal society.
It is through media just individuals will make strides for ladies strengthening and for the
annihilation of this profound established issue of sexual orientation disparity which
prompts the present commonness of conjugal assault and female genital mutilation.

138
Sex Education, Wikipedia, (Last updated on December 19, 2015),
<https://en.wikipedia.org/wiki/Sex_education>. Sex education is instruction on issues relating to human sexuality,
including emotional relations and responsibilities, human sexual anatomy, sexual activity, sexual
reproduction, reproductive health, reproductive rights, safe sex, birth control and sexual abstinence. Wikipedia

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 Ensure access to Reproductive Health Administrations: Governments ought to
guarantee suitable access to conceptive wellbeing administrations, regardless of whether
a lady has experienced FGM or experienced marital rape. Ladies who have experienced
FGM ought to approach the data and human services they require. Likewise, conceptive
human services administrations can be a wellspring of data for ladies about their own
regenerative wellbeing, making it simpler to comprehend the hurtful results of FGM and
conjugal assault. A superior comprehension of these wellbeing impacts may make ladies
more averse to experience FGM or to urge others to do as such and dissident against
conjugal assault. Worldwide lawful benchmarks build up not just that a lady has the
privilege to dismiss FGM and conjugal assault or any kind of sexual brutality against her,
yet that administrations must make a move to guarantee that ladies and young ladies are
engaged to settle on such a decision. In making a move against FGM and conjugal
assault, the measures that legislatures utilize should themselves adjust to acknowledged
human rights standards. The suggestions in this section are planned to direct governments
toward consistence with those standards. By embracing a portion of the proposals
displayed, an administration could step toward advancing the prosperity of its kin.

Empowering Women to Make Their Own Decisions: Women can't forsake the act of
FGM until the point when they have the way to take an interest in all segments of society.
In nations in which FGM is an essential for marriage, ladies and young ladies whose
monetary security relies on their capacity to be hitched are not ready to settle on their
own choices about the strategy openly. What's more, there are numerous families in
which marital rape is as yet a remote term which is a noteworthy escape clause.
Governments should work to guarantee ladies' equivalent access to instruction, interest in
broad daylight office, and access to credit. Ladies ought to likewise appreciate equity
with men in the work environment, procuring an equivalent compensation for break even
with work. There is much that legislatures of accepting nations can do to add to the
strengthening of ladies. While governments should regard the group life of new
foreigners, governments ought to likewise guarantee that worker ladies can settle on
educated decisions about their own bodies and access all the life alternatives accessible in
their new nation. For instance, governments should bolster programs that offer
employment preparing, direction in the dialect of the dominant part, and data with respect
to roads for lawful insurance.

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 CONCLUSION
In majority rule government, law making is an open exercise. Resultantly, an authoritative
strengthening rather than an official glorification of energy can't happen without open
examination. The Constitution, in any case, does not simply require an administrative system but
rather the one, which is quite recently reasonable, sensible and adequate to the general public on
the loose.

Hence, it isn't right to state that the Indian laws are current laws in each conceivable sense. Laws
are made for the general population and it ought to be changed to meet the points and yearning of
the evolving society. At last, the point ought to be to develop a consensual and applied model
viably taking care of the shades of malice without giving up human rights. Subsequently, it is
insistently reasoned that after incorporation of conjugal assault in the classification of assault in
segment 375 of the Indian Penal Code, 1860; there ought to be a different arrangement made for
female genital mutilation and the discipline for the same ought to be settled instantly as the
motivation behind the law ought to be to serve the general population everywhere and not to
alarm them.

While it has been exhibited over that a few arrangements exist in Indian law for criminal activity
against any type of hurt, there is no particular say of FGM/C in our laws and the training to a
great extent goes unnoticed. It has additionally been seen, universally, that it has demonstrated
important to have a particular law managing the subject, which tends to arraignment as well as
avoidance, instruction, mindfulness building, help and restoration. In this way, the discourse here
is definitive that a different law on FGM/C is required for comparative reasons, that is, to
uncover the issue and address it as a hurtful criminal practice and not as an adequate religious
practice.

It is yielded that changing the law on sexual offenses is an impressive and touchy errand, and all
the more along these lines, in a nation like India, where there is a contemporaneous nearness of a
fluctuated and separated arrangement of individual and religious laws that may collide with the
new corrections in the statutory criminal law. Further, however, there is requirement for
generous changes in the law on sexual offenses, for example, making them impartial and wiping
out the imbalances, a radical redesigning of the structure of sexual offenses isn't prudent. The
quick need is criminalization of conjugal assault under the Indian Penal Code. Be that as it may,
unimportant revelation of a direct as an offense isn't sufficient. Something more is required to be
improved the situation sharpening the legal and the police. There is additionally a need to
instruct the majority about this wrongdoing, as the genuine target of criminalizing conjugal
assault must be accomplished if the general public recognizes and difficulties the overall myth
that assault by ones life partner is immaterial.

On Account of the negative states of mind in glamorizing the assault trials, the assault trials are
held essentially in camera. The Media must be delicate to the predicament of the assault casualty

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and must not feature the name or any derivation prompting the distinguishing proof of the
casualty, as it will be counterproductive. The Media must not feature the situation where the
guilty party has been vindicated yet should perpetually feature those situations where the
wrongdoer has been sentenced, as it will imbue the sentiment discouragement among the general
population. These Areas require quick consideration by the administrators, by the officials and
by the legal. The Due introduction and acknowledgment of human privileges of a class of
people, who are deliberately as well as institutionally abused and constitutes one portion of the
number of inhabitants in our nation and in addition humankind, is the prompt prerequisite of our
general public.

Concentrate the laws, the procedure, the use of those laws, one thing is sure the whole structure
of equity needs an upgrade, generally the casualty might never again be the lady, yet humankind
in general.

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 REFERENCES

PRIMARY SOURCES

INTERNATIONAL CONVENTIONS

1. Universal Declaration for Human Rights (UDHR)139

2. International Convention on Civil and Political Rights, 1970 (ICCPR)140
3. International Convention on Economic, Social and Cultural Rights (ICESCR)141
4. Declaration on Elimination of Violence against Women (DEVAW)142
5. Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW)143
6. Declaration on Principles of International Law Concerning Friendly Relation and Co-Operation
Among States In Accordance With UN Charter,1970
7. International Covenant on Human Rights and Measures of Implementation.
8. UN Charter, 1945
9. General Recommendation No. 14 of the CEDAW on Female Circumcision (1990)144
10. General Recommendation No. 19 of the CEDAW145
11. The Joint General Recommendation/General Comment No. 31 of the Committee on the
Elimination of Discrimination against Women and No. 18 of the Committee on the
Rights of the Child146

NATIONAL LEGISLATION

1. Indian Penal Code, 1860.

2. Female Genital Mutilation Act, 200393, United Kingdom
3. Crimes (Female Genital Mutilation) Act, 199694, Australia147
4. Violence Against Persons (Prohibition) Act, 201595, Nigeria148
5. Goa Childrens Act, 2003, India149
6. The Protection of Women from Domestic Violence Act, 2005, India150

139
Available at: http://www.ohchr.org/EN/UDHR/Pages/Language.aspx?LangID=eng
140
Available at: https://treaties.un.org/doc/publication/unts/volume%20999/volume--999--i--14668-
-english.pdf
141
Available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx
142
Available at: http://www.un.org/documents/ga/res/48/a48r104.htm
143
Available at: http://www.un.org/womenwatch/daw/cedaw/cedaw.htm
144
Available at: http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm
145
Ibid.
146
The Joint General Recommendation/General Comment No. 31 of the Committee on the Elimination of
Discrimination against Women and No. 18 of the Committee on the Rights of the Child
147
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