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HOW MARITAL RAPE IS NO RAPE IN INDIA

2017-08-21 14:37:44
HOW MARITAL RAPE IS NO RAPE IN INDIA

The matter came before consideration of the Court in a petition filed by Independent Thought, an NGO, seeking clarification on the IPC Section concerning the offence of rape (S.375 IPC) wherein an exception enlisted in the Section states that “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”. The age of attaining majority and the minimum age of marriage being 18; and while 15 years of age is mentioned as the threshold age below which even consensual intercourse will be considered as rape, it is a stark contrast within the law that 15 years of age has been indicated as the threshold only in case of married girls. It puts in place a discrimination against married women as against unmarried women, which is not only unreasonable but also plunges the fate of married young girls into further misery of forced sex which constitutes ‘rape’ in plain terms. The Bench consisting of Justice Deepak Gupta and Justice Madan B Lokur stated in the decision that “in cases where college-going teens below 18 years of age engage in consensual sexual intercourse [and the boy gets booked under ‘rape’ later]… the boy is not at fault and the punishment of 7 years is too harsh.” The Court considered it a similar situation where a girl [under 18] elopes with a man and after consensual intercourse books the man under ‘rape’, where the consequences on the man may be termed as unjust. The wife being subject to marital rape is not rare and is normalized by a large part of the community that faces marital abuse stories without surprise since a considerable section does not consider it wrong for the husband to rape his wife. A majority of the men in India do not regard it as an act of rape to subject wife to forced sexual activity or marital abuse, and not even sex crime attorneys in India seem eager in taking up the issue as serious as other instances of rape. The rape law in India still stands at the earliest notions on women and wife being akin to husband’s property, wherein sexual and other rights automatically transfer to the husband who is free to fulfill his fantasies with even a minor wife. The number of men that would explicitly claim to have a right to “rape my wife” and not feel ashamed of it is not too low in our society.

However, it is not the Court that is fully at fault, as the power of Judiciary lies in declaring the law and not framing of it; which is essentially a matter under the power of the Parliament. Despite constant urges from various Organizations, the JS Verma Committee (in its Report that led to the 2013 Amendment of IPC after the horrific Delhi rape incident), and the general public, the Parliament has been adamant in maintaining the view that marital rape does not fall under “rape” as a criminal offence by itself. The Centre (respondent in this case) urged that the impugned provision was necessary to protect the ‘institution of marriage, considering the social and economic conditions of the country’ and the Court stated that the Parliament has debated extensively on the subject of marital rape, and has decided that even forced intercourse by the husband need not be considered rape if the girl is above 15 years of age. However, the POCSO Act considers it an offence to commit penetrative sexual assault with a child even while being in a relationship of marriage with the child. The exception under the IPC stands as a stark contrast to POCSO and the Constitutional provisions of equality and non-discrimination; and deters the right of the child to refuse sexual intercourse, whether or not she has been married by free will. The Court has however sought clarification on the matter whether the Parliament has debated on the issue of married girls between the age group of 15-18 years being caught up in a gray area; and whether the Court could intervene to protect the rights of those girls who are sexually exploited or raped by their spouses.

The continued inaction on the issue highlights the inherent patriarchy that is so intrinsically woven into the Indian psyche that it merely passes off as a normal social condition, and no amount of feminism and empowerment succeeds at severing its roots. Once married, woman is presumed to have given implied consent to the husband to exercise all rights upon her, including sexual intercourse. While the position of law acknowledges that spouses have conjugal rights on each other, it is high time to take into consideration the plight of young married girls forced into sexual intercourse by husbands and not being able to proceed against him for the offense of rape, merely because they are above 15 years in age. The distinction that is brought about by way of such segregation on the sole ground of marriage is clearly violative of the equality guaranteed to all under Art.14 of the Constitution, and the sexual exploitation of young girls at such tender age is violative of their right to life under Art.21 as well. The socio-economic scenario in India requires an amendment in law to afford safety to girls married off before 18, since child marriages still persist in several provinces despite the law’s prohibition, and their sexual exploitation and rape cannot be effectively curbed with the existing law due to the loophole of the exception of marital rape’. 

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