Sex with minor wife is rape, SC judgment gives hope to fight for criminalising marital rape

Law is never the only solution. It needs to be supported by the people and the society.

 |  7-minute read |   12-10-2017
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The Supreme Court has ruled that Exception 2 to Section 375 (which defines rape) of the IPC, as it stands, is arbitrary and violative of articles 14, 15 and 21 and not in consonance with the POCSO Act. With this verdict, sexual intercourse with a minor wife becomes a criminal offence.

Till now, India’s rape and child marriage laws differed on the age of consent. While Section 375 of the Indian Penal Code calls sex with a girl below 18 rape, it had an exception that says sexual intercourse between a man and his wife, who is 15 years or older, is not rape even if it is without her consent.

One of the main contentions of the petitioner (NGO Independent Thought) was that the impugned exception violates Article 14 of the Constitution, since it classifies women into two categories based on their marital status and the classification has no reasonable nexus to the object sought to be achieved.

The IPC was amended in 2013 and the age of consent was raised to 18 years [from the earlier age of 16, which was the age of consent since 1940] and the rationale behind that was a girl below the age of 18 years is considered incapable of realising the consequences of her consent; she is treated as a minor under law and, therefore, mentally and physically not mature enough to give a valid consent.

child_copy_101217034135.jpgPetition seeking criminalisation of marital rape is pending in the Delhi High Court.

Raising the age of consent to 18 years was indicative of the fact that Parliament considers girls below the age of 18 years as incapable of giving consent for sex. But Parliament fixed the age of consent for married girls as 15 years while for all other acts like Protection of Children from Sexual Offences Act, 2012 (POCSO), Prohibition of Child Marriage Act, 2006, Juvenile Justice (Care and Protection of Children) Act, 2000, a girl less than 18 years is regarded a child.

As of now, the Supreme Court refused to go into the larger issue of marital rape. But is the SC verdict is set to have a huge impact on petition seeking criminalisation of marital rape that is pending in the Delhi High Court?

The debate should now go to another level and rights activists should highlight that women’s personal choice be given due importance and that marital rape is made a criminal offence.

It's a crime in many countries

There are many common law countries that have legislatively abolished the marital rape immunity. These include South Africa, Ireland, Canada, the United States, New Zealand, Malaysia, Ghana, and Israel. But the Indian rape laws, which also had its origin in the common law, allowed an exception for cases where the perpetrator is the husband. Section 375 of the Indian Penal Code, which defines rape, makes an exception for marital rape by stating, “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

Poland in 1932 was the first to have a law explicitly making spousal rape a criminal offence.

Australia, under the impact of the second wave of feminism in the 1970s, was the first common law country to pass reforms in 1976 that made rape in marriage a criminal offence. In the two decades before that, several Scandinavian countries and countries in the Communist bloc passed laws criminalising spousal rape including Sweden, Norway, Denmark, and the former Soviet Union and Czechoslovakia.

Since the 1980s, many common law countries have legislatively abolished the marital rape immunity. These include South Africa, Ireland, Canada, the United States, New Zealand, Malaysia, Ghana and Israel.

In the US, between 1970 and 1993, all 50 states made marital rape a crime. In 1991, the House of Lords in the UK struck down its common law principle that a marriage contract implied a woman’s consent to all sexual activity.

In 2002, Nepal got rid of the marital rape exception after its supreme court held that it went against the constitutional right of equal protection and the right to privacy. It said, “The classification of the law that an act committed against an unmarried girl to become an offence and the same act committed against a married woman not to become an offence is not a reasonable classification.”

According to the UN Women’s 2011 report, out of 179 countries, 52 had amended their legislation to explicitly make marital rape a criminal offence. The remaining countries include those that make an exception for marital rape in their rape laws, as well as those where no such exception exists and where, therefore, the spouse can be prosecuted under the general rape laws.

Justice JS Verma Committee report

There has been long standing demand of the women’s activists that marital rape be considered an offence. Justice JS Verma Committee constituted in the aftermath of the December 2012 gangrape in Delhi had backed that demand and recommended making marital rape an offence. The committee had said: "Marriage or any other intimate relationship between a man and a woman is 'not a valid' defence against sexual crimes like rape."

The committee had sought "an exception for the definition of marital rape in the existing laws".

“The law ought to specify that marital or other relationship between the perpetrator or victim is not a valid defence against crimes of rape or sexual violation,” the committee said in its report.

The committee said the "relationship between the accused and the complainant is not relevant to the enquiry into whether the complainant consented to the sexual activity and the fact that the accused and the victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape".

The committee quoted various court judgments in different countries, and said "the exemption for marital rape stems from a long outdated notion of marriage, which regarded wives as no more than the property of their husbands".

“Our view is supported by the judgment of the European Commission of Human Rights in CR versus UK, which endorsed the conclusion that a rapist remains a rapist regardless of his relationship with the victim,” the 630-page report said.

Even in South Africa, the 2007 Criminal Law (Sexual Offences and Related Matters) Amendments Act (Sexual Offences Act) provides that marital or other relationship between the perpetrator and the victim is not a valid defence against the crimes of rape or sexual violation.

For how long will we have to follow the common law of coverture, wherein a wife is deemed to have consented at the time of the marriage to have intercourse with her husband at his whims?

Attitudinal Change

Law is never the only solution – it needs to be supported by comprehensive training to individuals and increased sensitisation. Justice Verma panel recommended that there is a need for attitudinal change where the legal prohibition on marital rape is accompanied by changes in the attitudes of prosecutors, police officers and those in society more generally.

Citing the example of South Africa where, despite legal developments, rates of marital rape remain shockingly high, the Verma committee report points out that a 2010 study suggests that 18.8 per cent of women are raped by their partners on one or more occasion. "Changes in the law, therefore, need to be accompanied by widespread measures raining awareness of women’s rights to autonomy and physical integrity, regardless of marriage or other intimate relationship," the report said.

In India, 94 per cent of rapes are reportedly committed by someone known to the victim, and women are 40 times more likely to be assaulted by their husbands than by strangers. While the law alone is not the panacea for all the ills, it can serve as a starting point in the fight to reduce sexual violence within and outside of marital relationships.

Also read: Why Supreme Court outlawing 'sex with minor wife' can help criminalise marital rape

 

Writer

Praveen Shekhar Praveen Shekhar

The writer is Associate Producer, TVTN.

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