India yatengua Sheria ya Ubakaji katika ndoa, mume ruksa kumbaka mkewe

DeepPond

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Nov 18, 2017
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Mahakama Kuu nchini India imetengua Sheria ya ubakaji ndani ya ndoa (marital rape act) ambayo mke katika ndoa aliweza kumshitaki mumewe mahakamani kwa kosa la ubakaji (kumuingilia bila na ridhaa yake) na kudai kulipwa fidia au mume kwenda jela miaka 15 au vyote kwa pamoja.

Mahakama Kuu imesema itahesabika mke kabakwa endapo itakuwa kaingiliwa akiwa yuko chini ya umri wa miaka 15 (umri wa chini kabisa mwanamke kuolewa nchini India chini ya ridhaa ya wazazi wake).

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A top court in India has affirmed the legal standard that all forms of marital rape against a woman are legal so long as she is above the age of 15, despite a previous Supreme Court judgement raising the age to 18.

The High Court of Madhya Pradesh, a state in central India to the southeast of the capital New Delhi, has ruled against a woman who reported her husband for raping her on two occasions after they became married in June of 2019. While marital rape is legal in India, the woman attempted to have her husband charged for assaulting her in “unnatural” ways.

Section 375 of the Indian Penal Code declares that all forms of rape are illegal where the woman does not or cannot give consent, but leaves an exception for “sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age.”

However, in October of 2017, the Indian Supreme Court tried to increase that age, ruling in Independent Thought vs. the Union of India that “sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not.” The Supreme Court determined that “the exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved.”

But in the newly-published judgement by the Madhya Pradesh High Court, Justice Gurpal Singh Ahluwalia determined that the definition of “rape” did not include married women over the age of 15.

“After considering the amended definition of ‘rape’ as defined under Section 375 of IPC has already come to a conclusion that if a wife is residing with her husband during the subsistence of a valid marriage, then any sexual intercourse or sexual act by a man with his own wife not below the age of 15 years will not be rape,” according to Live Law India.

The High Court further endorsed a previous ruling from last year where it declared that all “unnatural sex,” as defined in Section 377 of the Indian Penal Code, is also covered under the marital rape protections.

The Supreme Court of India carved out an exception in 2018 against the law that blocked “carnal intercourse against the order of nature” for consensual relations between adults, “whether between same-sex individuals or otherwise.” But the new High Court ruling concluded that any acts of “unnatural” sex committed without consent by a husband against his wife, provided she is over the age of 15, are legal.

As previously reported by The Publica, a decision at the Supreme Court is currently hearing arguments to determine if marital rape will be made completely illegal in the country.

The Publica
 

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