The Centre argued for protection of the husband and the sanctity of conjugal relationship of marriage which is in stark contrast to protecting a minor female child and her right to consent.
On 11 October 2017, the Supreme Court of India passed a remarkable judgment in Child harassment laws. The exception abnegating husband’s liability for establishing sexual relations with a minor wife has been struck down by the Supreme Court. The Supreme Court called the exception unnecessary and controversial and has struck down exception (2) to section 375 of Indian Penal Code, to harmonize the harassment law relating to children. The judgment not only protects women below 18 years from marital rape, but it has paved the way to criminalize marital rape per se, in the country.
Section 375 of Indian Penal Code describes what constitutes the offence of Rape and describes its punishment. The section has seven parts describing what constitutes rape and two exceptions to it. One of the exceptions read that, “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under the age of fifteen years, is not rape. ”This is contradictory in nature to the entire law regarding harassment and rape, primarily because the age of consent according to IPC is eighteen years. This dichotomy in the act has been best described by Justice Lokur who wrote, “A child remains a child whether she is a married child or an unmarried child or a divorced child or widowed child.”
The bench acknowledged the unnecessary distinction created by this regressive clause which legitimizes child marital rape and reprimanded the government for defending the exception instead of implementing anti-child marriage laws more effectively.
One would think that Centre would accept their conscious mistake in the drafting of the section. But the Centre is still not rid of male chauvinists who want patriarchy to prosper and propel. The Centre argued for protection of the husband and the sanctity of the conjugal relationship of marriage which is in stark contrast to protecting a minor female child and her right to consent. Centre was completely supportive of the invasive sexual intercourse with a minor girl if that could protect the “sanctity of a conjugal relationship”.
This does not come as a surprise considering India still has not even considered banning marital rape. Centre fails to realize how pertinent and real the problem is but one look at National Family Health Survey data brings appalling facts to light. On a survey conducted on 62,652 married women, more than 36.7 percent reported going through physical and sexual violence.
“The awareness that females have no resort against sexual violence just by virtue of being in a marital relationship will deter them from being a part of the marital institution”
Thus, it becomes pertinent that India is in dire need of a law against marital rape. In the judgment passed on October 11th, however, Supreme Court refused to go into the question of marital rape. It only removed the dichotomy from the present legal system regarding age of consent. It acknowledged the fact that there is no reasonable logic behind not providing protection to minor girls against rape, just by the virtue of the fact that they are married. What India as a nation has failed to realize is that if it does not criminalize marital rape, the thread of marriage will fall apart because females would not want to get tied in an arrangement where they do not have a say in consent. The awareness that females have no resort against sexual violence just by virtue of being in a marital relationship will deter them from being a part of the marital institution.
After taking cognizance of a draconian discrimination between minor and major females in marriage, it is high time that Supreme acknowledged the omnipresent crime of marital rape which Indian females have been suffering since times immemorial and criminalize the act of marital rape.
