January 8, 2016

Marital Rape within Child Marriage: A Discriminatory Provision

By Bhumika Maheshwari, 3rd Year Student at National University of Juridical Sciences

Introduction

Indian Penal Code, 1860 (‘IPC”) under Section 375 provides an exception that ‘Sexual intercourse by a husband with his wife, who is not being under the age of 15 years, is not a rape’. On the other hand, Criminal Law (Amendment) Act, 2013 changed the minimum age of consent for sexual intercourse to 18 years against the earlier provision of 16 years. Consequently, there arises an anomaly as to the difference in position of a married Girl and an unmarried girl under the same law. An act of sexual intercourse with a married girl by her husband is not a rape if she ages above 15, contrary to the position of an unmarried girl, where, any kind of sexual intercourse, with or without consent, will amount to rape against her if she is below 18 years of age. Hence, it is quite clear that IPC distinguishes between the positions of the minor girl based on their marital status.

Marital Rape Exception: Contradictory to Other Statutes

Larger State Policy, since, the year 2000 has recognized child as ‘any person under the age of 18 years’, however, the above exception under IPC distinguishes the age of a child from all other statutory provisions. Statutes like Prevention of Child Marriage Act 2006 (‘PCM’), Protection of Children from Sexual Offences Act 2012 (‘POCSO’), etc. all recognizes the child as ‘any person below the age of 18 years’.

PCM Act as its objective prohibits the solemnization of child marriages. In other words, it prohibits solemnization of those marriages where the girl ages below 18 years and boy below 21 years. Hence, a female below 18 years of age cannot marry a male of any age and vice-versa. The Act provides for the penalties against the persons who solemnize, promote or allow the child marriages. However, the Act doesn’t lay any authority over the sexual relations emerging out of such prohibited child marriages. But the Act, indirectly, by recognizing and legitimizing the children borne out of such marriages permits the sexual intercourse within the child marriage.

Further, POCSO, which was recently enacted, was enacted with the objective of protecting children from offences like sexual assault, pornography, sexual harassment, etc. and to provide them with the children-friendly trial system. This Act doesn’t recognize the autonomy of children in any form of sexual matters. Children can be convicted for any of the above crime under the Act. It also provides under Section 2(1)(d) that a child can be any person who is below 18 years of age. Therefore, any form of sexual intimacies or interactions with or among the children below the age of 18 years is punishable under the Act. 

Marital Rape Exception: A Draconian Provision

Marital rape indicates towards those unwanted sexual intercourses against a wife by her husband, where she is unable to give consent either because of force or threat of force or by physical violence exercised by the husband. In other words, it is a brutal perversion against the modesty of the wife by the husband without her consent, where she is mentally and physically or sexually harassed. 

Traditionally, wife’s role within a marriage was considered as docile, meek and of a home-maker. Maintaining sexual relations in a marriage were regarded as obligatory and a societal taboo. Discussing about it in the open was also very rare; hence, the awareness regarding it remains dismal. Economic dependence upon the husband is still a very crucial factor hindering the right of wife being heard and respected. Further, the societal pressure of being a ‘good wife’, to quietly serve, to not complain against anything in the public, makes the position of wife miserable and counseling inaccessible.

However, despite all this, the significance of volition of a woman in making its own decision can’t be over-stressed. Hence, it is quite ironical, that a woman can preserve her dignity, her right to life and personal liberty under the Constitution but it can’t protect her body from being sexually harassed within a marriage. So far, only Section 498-A under IPC (deals with cruelty) can be resorted to by a married woman for protecting herself from ‘vicious conduct of the husband’. But, still, the definition of the term ‘vicious’ is not clearly scripted so as to decide the standard of measure for court’s interpretation as to what amount to ‘vicious’ within a married relationship. Will the excessive desire of sex by husband vicious? Is consent for sex a sine qua non? Or is a marriage a permit for committing rape? These questions are not answered, as both the legislature and the judiciary are silent on the same. 

Marital Rape Exception within Child Marriage: A Wrong Law 

1. Marital Rape Exception is violative of POCSO

As stated above, the IPC provides for a marital rape exception, however, on the contrary, POCSO doesn’t embed any such exception. It provides that every act of sexual intercourse committed against a person who is under 18 years of age is a crime, irrespective of the age or gender of either the victim or the accused. Further, a sexual assault will amount to a more aggravated form of sexual assault if the penetrative sexual intercourse is committed by ‘a person who is the relative of the child either through blood or marriage or adoption or guardianship or through a domestic relationship with the parent of the child or who lives in the same household with the child’. 

Hence, it is clear, under POCSO, that a spouse (who is related to the girl child with marriage) is liable to be convicted for an aggravated crime of a penetrative sexual assault committed by him against his wife, who being below the age of 18 years. This is in no way affected with the legal status of the marriage, i.e. whether it is entered into voluntarily or not, hence, any sexual contact with the wife under 18 years of age is punishable under POCSO. 

This provision in POCSO is in contravention to the exception provided under Section 375 of IPC. Hence, there arises a very pertinent question as to whether POCSO will override the IPC or not? Answer to this is provided in the POCSO itself. Section 42-A of POCSO, which was inserted by the Criminal Law (Amendment) Act, 2013, states that:

Act not in derogation of any other law: - The provisions of this Act (POCSO) shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of its inconsistency.  

Section 42-A of POCSO, hence, clearly implies that in case any controversy arises as to the application of POCSO and any other statute, the former will come into play and over-rides the application of all other laws. Hence, the exception under IPC to marital rape till the age of 18 will not apply, for being contradictory to POCSO. Therefore, in all cases where the bride or the groom is under 18 years of age, they can be convicted with the charge of aggravated crime of penetrative sexual assault under POCSO.

2. Marital Rape Exception is violative of Article 14, 15 and 21 of Constitution

The marital rape exception as provided in the Section 375 of IPC is violative of the fundamental rights provided under the Articles 14, 15 and 21 of the Constitution. The reason behind such violation is the discriminatory nature of the provision itself, which distinguishes between the position of a girl aging between 15 to 18 years and girl aging above 18 years on the basis of their marital status, which has no reasonable nexus to the purpose it sought to achieve. 

Delhi High Court, also, in a case on its own motion Lajja Devi v. State  held that ‘it is distressing that the IPC “acquiesces sexual intercourse” by a man with his wife above the age of 15 and below the age of 16 years [Criminal Law (Amendment) Act was brought in the year 2013, while, the above case was decided in the year 2012, therefore, during the trial of the Case ‘age of consent’ was 16 years] within a child marriage.

Further, with the change in the societal structure, the age of consent for entering into sexual relationship has also changed. In the year 1860, it was 10 years, in 1940 it was changed to 16 years and recently by the Criminal Law (Amendment) Act, 2013 it was further increased to 18 years. However, the age provided under the exception in the Section 375 of IPC has not been changed; it is still the same, i.e. 15 years. This cannot be justified only on the ground that the concerned person is a married girl. Hence, the above provision is arbitrary in nature and thus, violative of Constitution. 

Additionally, Parliament has also failed to take note of various studies and surveys that shows developing pregnancy owing to sexual intercourse with a girl of age less than 18 years is detrimental to health not only of the girl herself but to the child as well. Hence, the Parliament by permitting or legitimizing the sexual intercourse, within a marriage, with a girl aging between 15-18 years has made the life of the girl and the child (if develops of such intercourse) prone to a considerable risk.

Further, Parliament by upholding the rights of the parents to take decisions about the life of their daughters, below 18 years of age, has violated the rights of the daughter to choose and take her own decisions, to live the life in the best possible manner, i.e. without being forced to enter into any kind of sexual relations only because they have been married of by their parents.

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