By Manali Joshi
A 17-year-old boy who has consensual sex with another girl of his age is charged with statutory rape. On the other hand, a 50-year-old who performs sexual intercourse without the consent of his 15-year-old wife has committed no statutory offence. This clearly shows the situational anomaly.
Marital rape in India is not a crime. It is highly disappointing that when a husband asks for sex, it is considered his conjugal right, while a woman’s side is never taken into account. In the words of Rajesh Vakharia, the President of the Save Indian Family Foundation, “If now we make marital rape illegal, the institution of marriage itself will fall apart. Men would then rather go to a prostitute than get a wife“. Section 375 of the Indian Penal Code (IPC) defines rape, but unconsented sex between husband and wife does not fall under its purview.
Enactments before the judgement
According to Section 376(1) of the IPC, a husband can be criminally prosecuted for an offence of marital rape variedly. When the wife is below 12 years of age, the offence is punishable with imprisonment for a term which shall not be less than seven years but which may extend to 10 years or life, and shall also be liable to fine. When the wife is between 1215 years of age, he is punishable with imprisonment of up to two years or fine or both. In case of rape of a judicially separated wife, the offence is considered punishable with imprisonment of up to two years and fine as per Section 376A. However, the rape of a wife above 15 years of age is not punishable at all as per the exception clearly stated under Section 375 of the IPC. It gives no legal protection to the wives after the age of 15 which goes against human rights regulations.
The Protection of Women from Domestic Violence Act, 2005 protects women from sexual assault and physical and mental cruelty. However, it lacks where marital rape is concerned. There is only a civil remedy provided there. Under this Act, a woman can seek redressal and obtain judicial separation from her husband for the offence.
The landmark judgment
The judgement delivered by the Supreme Court on 11th October 2017 has given more empowerment to women and reinstated their rights. A bench of JusticesMadan Bhimrao Lokur and Deepak Guptacriminalised sex with a wife aged between 15 and 18 years. They declared that the exception under Section 375 of the IPC was arbitrary and violative of the Constitution when the age of consent prescribed by law is 18.
The apex court said that the exception is contradictory to all other statutes and violated the bodily integrity of a girl-child. The Supreme Court ruled the age of consent as 18 for all purposes after hearing a petition by non-profit group Independent Thought, which was the appellant in the present matter that sought to criminalise sex with underage wives. The court ruled that sexual intercourse by a married man with his minor wife below the age of 18 years will be called rape. The petitioners also referred to the provisions of the POCSO (Protection of Children from Sexual Offences) Act and pointed out that those were contrary to the IPC provisions.
Overcoming the social evils
Child-marriage has been declared illegal in India but is still rampant in backward areas and poor communities. The verdict is likely to undermine the social evil. It will create a deterrence in the minds of the families of boys. It will make them think twice before getting their sons married to girls below the age of 18 as now a man can be prosecuted if his underage wife registers a complaint of marital rape.
Initially, rape and child marriage laws in India were contradictory to the age of consent. However, the present order has harmonised the rape law with all other special legislation meant to protect children. Moreover, the order comes at a time when the Delhi High Court is hearing petitions calling for criminalising marital rape. Even though the verdict cannot be applied retrospectively, it has surely empowered women to seek redressal when they are sexually abused.
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