Right to Rape

A string of thoughts that came to my mind after reading a newspaper report got lost somewhere ie. before I read this piece by Aman (Click here for his thought-provoking post) who has written about the same topic in his blog. It is about the new Shia Law in Afghanistan that as good as legalises marital rape and also gives legal connotation the concept of "blood money" ie.. money given to a woman after she has been raped by the rapist so that she can under go medical treatment (how considerate of them). Writing about this disturbs me as much as it is a ridiculous notion. I think it is important to put forth certain points not just about what is happening in Afghanistan in this regard but also its simultaneous legal approach in so-called evolved judicial systems such as our own. But first some background.

Rape has always been considered one of the most detestable acts committed on a woman in all societies. Justice Krishna Iyer in a famous judgment said “When a woman is ravished, what is inflicted is not mere physical injury but the deep sense of some deathless shame… judicial response to Human Rights cannot be blunted by legal bigotry.” This much abhorred topic however got a special mention in International News recently. The Parliament of Afghanistan recently passed a Shia Law (the Shia community in Afghanistan that has its separate Shia Laws) that indirectly decriminalises marital rape giving the power to a husband not to feed her wife, starve her and sustain her if she refuses to copulate with him. It also says that a woman desirous of working can only work at certain institutions that too only with the permission of certain male members in her family.

Sometimes one just sits back at developments like this and hopelessly wonders what kind of senseless insecurity grips people to even begin to think on such lines. What kind of a world do we live in? While in one part of the world we are fighting positive wars, that for liberalism, that for uplifting all kinds of censorship and now also decriminalising homosexuality among consenting adults and in another part of the world we have laws being carved out such as this one. In fact, Muslim clerics are justifying that if a woman has the right to say "no" to her husband’s sexual advances then he also has to right to deny her food and sustenance. As I understand it, Shia population in Afghanistan consist of around 15% of the total population of the country and President Karzai has been quite keen on pleasing the Shia population (read men) before the elections so as to increase his chances in the polls.

This in fact reminds me of Khaled Husseini's A thousand Splendid Suns in which the protagonist tries again and again to run away from the brutalities of her husband but every time someone or the other grabs her only to be mercilessly beaten up by her husband for venturing out without his consent. Such laws, such fundamentalist attitude and such Talibanisation is nothing but a way to make sure that women don't even think of the rights enjoyed by people all across the world. One feels so helpless listening to stories like these. What freedom, what world, what beauty, what brains do we talk about? I may be getting too caught up here but I sincerely hope that International Organisations would create a major stir and pressure the Afghan Government enough to scrap such an abhorrent law.

But this is not where the discussion ends. For we can't just look at one sect and their laws in isolation while living under a delusion of security in our own land. Rape laws in countries like India and USA are also not fundamentally very clear as far as marital rape in concerned. By definitions of rape that approximate the legal standard, a series of surveys have found that about 10-14% of married women in the U.S.have been raped by their husbands. Indian Law, in fact, specifically exempts marital rape as an offence in S 375 IPC. It is presumed that by entering into matrimony a woman lays down all her defences with regard copulation with her husband. The same proposition was strongly supported by Sir Matthew Hale, Chief Justice in 17th century in England who is widely quoted for saying, “The husband can not be guilty of a rape committed by himself upon his lawful wife, for their mutual matrimonial consent and contract, the wife hath given up herself in this kind unto the husband which she can not retract.”

Though we do boast of the Domestic Violence Act 2005 but even that calls for a through scrutiny and amendments as it makes marital rape a part of domestic violence, thereby considerably reducing the punishment from what one gets for committing rape otherwise. There is no clear law that makes marital rape a crime equivalent to a non-marital rape. Moreover, there are such lacunas in our legal system that on one hand penalises any sexual intercourse with a girl aged below 16 years (consent is immaterial because a minor's consent is no consent in the eyes of the law) as rape and on the other hand marital intercourse with one's wife above 15 years is completely legal (see S. 375 IPC below) which basically implies that sexual intercourse with an unmarried girl of 16 years is rape, while that with a married 15 year old is clearly exempted from the Section dealing with rape. It is interesting piece of information that Nepal has declared that husbands who force themselves on their wives can be charged with rape. So we see an example of progressive law there. But what do we see here? There is nothing in the Indian Penal Code that defines or talks about marital rape. According to section 375 of the Indian Penal Code, "sexual intercourse by a man with his own wife, not being under 15 years of age, is not rape.” Even if it may happen everyday with a woman, in the eyes of law it never happened. The most common justification sought by people defending such laws is that such a rape is most difficult to prove and it would make it far easier for a woman to implicate her husband.

Continuing on the same lines, it is interesting to note that a man can claim divorce on the basis of his wife not consenting to have sexual relations with him (i.e. if she refuses to give him 'access' to her body) but if a wife wants to speak up against a rape committed on her by her husband, the law nowhere is clearly holds it as rape! There is, it seems, nothing that stops a man from expressing his claim to sexual gratification as a matter of right over his wife in a marital relationship. It is thus imperative that we sensitise the younger as well as the present generations about individual rights and how to respect these rights. A rape is a rape, period. And whether it is India or Afghanistan, whether the woman is married to the rapist or not, whether it is most difficult or easiest of jobs to prove or not—it is most essential that our laws endorse our ideology and our ideology match our actions.

Writ Petition

The following Civil Miscellaneous was submitted under another Civil Writ (PIL) against Apollo. This is my first petition and im happy that it worked. The day we served the petition, the counsel of Apollo Hospital called Sir to say that Apollo agrees to all the demands of our client. But we did bring it to the notice of the Chief Justice of High Court Mr. Shah, in whose Court this matter was listed.It has made me happy..my first petition..and our client is going to sleep peacefully now. He came to meet us today-- for a change he looked relieved and happy.

IN THE HIGH COURT OF DELHI AT NEW DELHI

CM NO. --- OF 2009

IN

WRIT PETITION (CIVIL) NO. 5410 OF 1997

(PUBLIC INTEREST LITIGATION)

IN THE MATTER OF

All India Lawyer’s Union (Delhi Unit) ………..Petitioner

Versus

Government of NCT of Delhi and anr. ……..Respondents

APPLICATION ON BEHALF OF THE PETITIONER UNDER SEC.151 CPC FOR DIRECTIONS TO THE APOLLO HOSPITAL TO PROVIDE FREE TREATMENT TO THE PATIENT SHRI SURESH RATHORE

RESPECTFULLY SHOWETH-

1. The petitioner by the above Public Interest Litigation has highlighted the fact that though the respondent-hospital has commenced its functioning since July 1996 and is obliged in terms of the lease deed to provide completely free treatment to the poor patients to the extent of 33% IPD and 40% OPD of the total occupied beds and of total OPD patients respectively but it has utterly failed to do so. It is submitted that an area of 15 acres of land on Delhi-Mathura Road, Jasola Village, Sarita Vihar, New Delhi was leased out at the rate or Rs. 1/- per month to Indraprastha Medical Corporation Ltd. Apart from 14.83 crores plus interest, a further sum of Rs. 23.83 crores was paid by way of equity capital by the Govt of NCT of Delhi to the respondent-hospital. Thus, a total sum of Rs. 38.66 crores (plus interest on Rs. 14.83 crores) along with 15 acres of prime land on the Delhi-Mathura road was leased out at the rate of Rs.1/- per month to the joint venture constituted by the Delhi government and the Hospital. The petitioner has sought directions against the Apollo Hospital to comply with the provisions in the lease deed and ensure free treatment to poor patients.

2. The petitioner by present application seeks to bring to the notice of this Hon’ble court a case of poor patient, namely, Shri Suresh Rathore who needs further treatment from the Apollo Hospital with regard to his medical ailment of calculi (stones) and hydronephrosis in his right kidney and has no money to pay on any account like medicines, consumables, testing and subsequent follow-up, whereas the hospital is asking him to pay nearly Rs. 18000/-. It is submitted that the said patient has already written a request letter dated 03.07-2009 in this regard to the Hon’ble Chief Justice of this Hon’ble High Court with a copy to Shri Ashok Agarwal, advocate for the petitioner.

True copies of the said letter dated 03.07.2009 along with medical papers are enclosed herewith and marked as Annexure A collectively.

3. The petitioner submits that the patient, namely, Suresh Rathore, resident of Meethapur Ext, Badarpur, New-Delhi 110044, has approached the petitioner personally as well as in writing stating that he was admitted at the government ward in the Apollo Hospital on 31.10.2006 after having diagnosed with right upper ureteric calculus 15mm with HDM (N) functioning kidney and gross hydronephrosis. Thereafter, Laproscopy operation was conducted at the hospital on him on 01.11.2006 and he was given discharge on 03.11.2006. The patient was again admitted at Apollo Hospital on 10.10.2007 in which DJ Stent removal took place. After the said treatments, which cost the patient approximately Rs 25,000/- towards medicines, consumables and testing, the patient was told that his ailment no longer exists and he was discharged. The findings in his Discharge Summary dated 10.10.2007 clearly stated “stone fragments removed”.

4. The petitioner submits that in 2008, the said patient again felt pain in his abdomen for which he approached G.B. Pant Hospital, Delhi, where his X-Ray report showed the presence of right upper ureteric and mid & lower part of right kidney calculus and Grade III Hydronephrosis of right kidney indicating that the ailment, for which the poor patient had spent Rs. 25,000/- while undergoing earlier treatment at the Apollo Hospital, was still present in his kidney.

5. The patient rushed back to the Apollo Hospital and was told that another operation would have to be conducted on him which would cost him approximately Rs. 18,000/-. The petitioner would like to highlight here that this is in contradiction to the findings of the Hospital in 2007 that the stone fragments had been removed, which shows that the Hospital had erred in its treatment, for which the patient is made to suffer, not only physical but also extreme mental agony.

6. The petitioner submits that the ultrasound report dated 01.08.09 also confirms that the right kidney of the patient has multiple calculi (5 to 6 in number) with the largest being 9.1 mm in size and the rest between 4.0 to 6.0 mm. It further shows that the right kidney of the patient also has Grade I Hydronephrosis. The petitioner would like to highlight here that during the very first diagnosis of the patient it was revealed that there was only one calculus (stone) right upper ureteric calculus, 15mm in size along with gross Hydronephrosis. This shows that the Hospital erred in arriving at the conclusion that the treatment was complete, while in reality the calculus had only been broken down into various pieces.

7. The petitioner submits that the patient is not at all in a position to bear any further expenses on any account for payment to the Apollo Hospital towards medicines, consumables, testing etc. It is submitted that the patient is in dire need of immediate medical attention at Apollo Hospital to get rid of his ailment. However, the Apollo Hospital has told him to arrange for a sum of RS. 18000/- for the treatment.

8. In the premise aforesaid, the petitioner most humbly prays that this Hon’ble Court may be pleased to:-

1. issue any appropriate direction to the Apollo Hospital to forthwith provide to the patient Shri Suresh Rathore necessary medical treatment free of cost without insisting on any payment on any account including that of medicines, consumables, testing etc;

2. issue any appropriate direction to Apollo Hospital for conducting free check-up of the patient after the said operation so as to ensure that the patient’s ailment does not recur; and

3. pass any further order or direction as may deem fit and proper in the facts and circumstances of the present case.

New Delhi

Dated: 04.07.2009 (Advocates......)