Rape cases in our country keep increasing at an alarming rate. Despite frequent media reports and coverage, the conviction rate is extremely low. Most of the rape cases stay out of court. Even if the law is involved in the process, justice remains far-fetched. This is because of the loopholes and gaps in our legal system regarding the “Rape” issue.
For example, the Penal Codes. Section 375 of Penal Code 1860 defines the offense of rape under situations – without her consent, consent was taken forcefully or by manipulation, a minor (under 14 years). But there are certain conditions; the penetration has to be sufficient enough to constitute the offense of rape and sexual intercourse with wife, with or without consent, under age 13 is not rape. During complaint filing, the already vulnerable abused goes through a series of questions in the name of interrogation. They are questioned about their lifestyle/dressing/morality. The court rules out in favor of the woman if she has engaged in any kind relationship or flirting with the rapist. This shows how we lag behind sexual harassment cases.
Another instance of such, the Penal Code criminalizes rape only if the wife is under the age of 13. Even then the punishment according to section 376 is imprisonment, which may extend to two years or a fine as commanded. This law completely contradicts the law of Child Marriage.
Restraint Act of 2017 that states women must be 18 years of age to be legally married. And generally married women are above 13 years in our country. So, it is impossible for a man to rape his wife according to the Penal Code. There is no question of filing a complaint since there are no laws regarding this matter. Though a wife can seek legal help under section 3 of the Domestic Violence Act 2010 if the husband causes physical, mental, and psychological abuse which harms the health and development of the wife. Some other aspects like intimidation, force, controlling behavior are also mentioned here. But there is no specific mention of marital rape since our legal system doesn’t acknowledge marital rape.
Section 509 vaguely covers the punishment and some aspects of sexual assault. Section 509 criminalizes words, gestures, or acts intended to insult the modesty of a woman with an imprisonment that may extend to a year or a fine as commanded. But here the lack of explanation and evidence that describes a women’s modesty is a major gap that needs to be addressed. However, the punishment cited is extremely low to the point it provides injustice to the victims. The Nari-O-Shishu Nirjatan Daman Ain 2000 defines under section 10 – if anyone touches a woman or child with any part of their body or violates a women’s modesty to satisfy their sexual desires will be susceptible to punishment. The act will be criminalized with imprisonment from 3 to 10 years with an additional fine. This is similar to section 509 of the Penal Code. Here the punishment is increased and a bit more detail is added. But it still reserves the old definition of the offense. Section 9 of Nari-O-Shishu Nirjatan Daman Ain 2000 discusses the situations under which the sexual assault has taken place and punishments according to that for women and children (both boy and girl).
The lack of awareness and knowledge regarding the matters related to sexual violence is another staggering factor especially incase of child harassment. Most of the parents in our country avoid discussing these topics with their children. As a result, when children go through any kind of sexual harassment, they are too baffled and clueless to address what has happened to them. Sex Education or a subject that discusses issues related to sexual violence should be included in the school curriculum. So, children are aware of these things.
There are a number of factors that are intertwined together that works in the favor of therapists. For instance, there is a social factor that stands in the way of justice of the raped victims. The so-called honor of the family often keeps the victims locked inside instead of fighting for justice. In rural areas and even in urban areas, they opt for out-of-court settlements. Since court cases often go on for years costing a lot of money. Even if the victim’s family decides to take action, our legal system and the legal team fail to carry their duties properly.
From time to time, various reforms and special laws were introduced. Like the Domestic Violence (Prevention and Protection) Act 2010, the Pornography Act 2012, the Telecommunication Act 2001, the Digital Security Act 2018. But all of them retained the Penal Code’s definition of rape. No changes were made to the definition. Thus the effectiveness of the laws remained more or less, the same. Strict laws should be implemented regarding rape. The gaps need to be addressed. It is a matter of great regret that our legal system still relies on the colonial definition of rape. As a result, a number of victims and situations fall completely outside the jurisdiction. Considering the increasing number of rape, marital rape, child abuse in our country, it is high time to address the challenges of the society and loopholes in our system. The rape laws of our country need to make more changes and made more broad and inclusive so all kinds of genders are included. Prosecution of rape needs to become a common affair. We need to achieve the dream of that empowered country, where every woman, children, and men can walk freely without any fear.