Reviewing The Views
Marital rape in a Hindu marriage
According to R K Bergen, "marital rape can be defined as any unwanted intercourse or penetration obtained forcefully by the husband or when the wife is unable to give consent." Marital status of a woman may not change the definition of woman and their consent.
In a survey titled "Violence Against Women Survey, 2011" by Zyma Islam conducted on 12,600 women randomly chosen across the seven divisions says an astonishing 87 per cent married women are abused by their husbands. 90 per cent of wives faced several times of marital rape and the fact is they don't know that they are the victims of marital rape even they don't know the word "marital rape" exists. Section 375 of the Penal Code 1860 considers marital rape if the wife is under the age of 13 years. Age of a woman cannot be a fact of her dignity or honor.
In Bangladesh, a Hindu wife cannot claim for divorce because ancient Hindu Law doesn't allow dissolution of marriage however painful cohabitation may be. A Hindu wife can claim separate residence and maintenance depending on some grounds according to the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946. In this act, there is a ground for claiming separate residence that if the husband is guilty of such cruelty towards her as renders it unsafe and undesirable for her to live with him. In this ground, first of all, there is no specific clarification of cruelty.
Most of the Hindu communities follow the centuries-old Dayabhaga Law. This law believes that marriage is not a contract so easy to break. So this law will never accept marital rape as a ground of separation.
Article 32 ensures right to life and liberty of every citizen of Bangladesh as well as Article 28 ensures that there will be no discrimination on the ground of religion, race, caste, sex or place of birth. Under the existing jurisprudence, the uncodified personal law is exempt from fundamental rights scrutiny.
Article 7(b) ensures constitutional supremacy and any other law inconsistent with the constitution will be void. So it's not sure that a Hindu wife can claim separate residence for marital rape or not? If not then it violates her fundamental law and if yes then she cannot enjoy fully her fundamental rights. The Prevention of Oppression Against Women and Children Act (2000) ensures the protection of every woman physically and mentally. In this act, woman means of any age not of any religion or caste or race. Unclear concepts of law need enough clarification.
According to the ICCPR of United Nations, Article 23(4) ensures equality of rights and responsibilities of spouses during marriage and its dissolution. Article 16 of the UDHR ensures women's equality in marriage so if the personal law violates her human rights than the government should take it into consideration.
In India, a woman has the right to divorce. Recently The Delhi High Court observed in a case that marriage doesn't mean that woman is always consenting for physical relations with her husband. Both man and woman have a right to say 'No' to their spouses. When other Asian countries are promoting women's right, we still have a long way to go.
Depending on some grounds, a Hindu wife can claim separate residence but the grounds neither clarify marital rape nor consider marital rape as a rape. So it seems that Hindu women are not protected by law. But it is high time to take steps in the protection of Hindu women to raise their voice against marital rape.
Suparna Roy is a student of law at University of Chittagong