The Viewpoint: The law on Criminalisation of Marital Rape

The Viewpoint: The law on Criminalisation of Marital Rape

The recent judgment of the Supreme Court of India on the criminality of sexual intercourse between a man and his wife, being a girl between 15 to 18 years of age, is likely to lead to important social and legal repercussions.

Though the Court categorically refrained from making any observations with regard to the issue of marital rape of a woman aged 18 years or above, the judgment has opened further channels of debate on this issue. Despite clarity in keeping the scope of the judgment limited to the issue of criminalising marital rape of girls aged between 15-18 years of age, many of the contentions and observations in the judgment may as well apply to marital rape of adult women.

Even though the question of marital rape of adult women has been left open, various dichotomies pertaining to legal provisions affecting female children aged between of 15 to 18 years, now stand harmonised.

The present article explores various aspects discussed in the judgment.

Legal Provisions protecting girls aged between 15 to 18 years

  • Prohibition of Child Marriage Act, 2006 (PCMA)

Section 3 of PCMA provides that child marriage is voidable at the option of any of the parties to the marriage. Interestingly, Section 9 of the same Act provides that any male adult over 18 years of age, marrying a “child”, shall be punishable with rigorous imprisonment extendable up to two years. Further, Section 10 and 11 of the Act penalise abetment and solemnisation of child marriage.

Thus, under this statute, child marriage itself is recognised as an offence.

  • Protection of Children from Sexual Offences Act, 2012 (POCSO)

The Act recognises sexual exploitation and sexual abuse of children as “heinous crimes” and defines a “child” as any person below the age of 18 years. A combined reading of Sections 3, 5(n) and 6 establishes that if a husband of a girl child commits penetrative sexual assault on his wife, he would be penalised for “aggravated” penetrative sexual assault, which is punishable with rigorous imprisonment of not less than 10 years, extendable to a life term.

Under the Act, a girl under the age of 18 years is a child, and hence, does not have the capacity — physical, emotional or mental — to make an informed decision about engaging in sexual intercourse.

  • Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act)

This Act also defines “child” as a person who has not completed 18 years of age and provides for, inter alia, protection of a child “who is at imminent risk of marriage before attaining the age of marriage…

  • Protection of Women from Domestic Violence Act, 2005 (DV Act)

Section 3 of this Act protects a girl child from any act of her husband that may harm or injure or endanger her health, safety, limb, life or well being, whether mental or physical, including protection from physical and sexual abuse by husband.

The Discordant Note – Section 375, Exception 2 of the Indian Penal Code 

All the provisions mentioned above are congruous and recognise a person under the age of 18 years as a child who needs to be protected and cared for. However, as observed by the Supreme Court, Exception 2 to Section 375 of the IPC is a “jarring note in (the) scheme of pro-child legislations…”

Under Section 375 IPC, sexual intercourse between a man and a woman where the woman is below the age of 18 years is statutory rape. However, Exception 2 of Section 375 provides that a husband can have sexual intercourse with his wife provided she is over 15 years of age. Therefore, sexual intercourse with a girl under the age of 15 years of age will be considered statutory rape, irrespective of her consent and regardless of the fact that the man is her husband.

Interestingly, Section 354(B) IPC, which defines and penalises assault or use of criminal force with an intention to disrobe a woman, does not provide any specific protection against husbands. The provision clearly uses the term “any man” and there is no exception like there is to Section 375 IPC. Therefore, a husband can be legally penalised for outraging the modesty of his wife, but not for raping her.

The Supreme Court, while harmonising the IPC, POCSO Act, JJ Act and PCMA, categorically rejected the distinction between a married girl child and an unmarried one, terming the distinction as “artificial”. It held that a child remains a child, regardless of her marital status. When the age of consent per se is fixed at 18 years and has not been reduced under any statute, there is no justification for carving out an exception for a married relationship.

The Court thus read down Exception 2 to Section 375 IPC, and held that the same should now be meaningfully read as “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape”.

Marital Rape of Women over 18 years of age

Even as the law protecting the rights of girls under the age of 18 years stand harmonised by the judgment, the question of rights of adult married women against sexual abuse remains open.

The debate on the issue of criminalising marital rape has always been a raging one. On one side are the increasing genuine instances of sexual abuse within marriage that are being reported by women, while on the other side, there is a real possibility of such a law being abused, with devastating consequences.

The Law Commission of India in its 172nd Report considered the issue of marital rape, but chose to ignore the voices that demanded the deletion of Exception 2 to s. 375 IPC on the ground that “it may lead to excessive interference with marital relationship” and may destroy the institution of marriage.

The Supreme Court, while deciding the issue of marital rape of girls below the age of 18 years, made certain observations and comments that are equally applicable  and pertinent to married women over 18 years of age.

One of the foremost issues is that of the right to bodily integrity and reproductive rights. While referring to various precedents, the Court found that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as under Article 21 of the Constitution. This right, in effect, would include a woman’s right to refuse participation in sexual activity.

The Supreme Court also noted views expressed by the Justice (Retd.) JS Verma Committee, where reference was made to a decision of the European Commission of Human Rights that concluded that a rapist remains a “rapist regardless of his relationship with the victim”.

The Court referred to Eisend v. Baird, where the US Supreme Court observed that a marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. It was further noted that marriage is not institutional but personal – nothing can destroy the institution of marriage except a statute that would make marriage illegal.

In fact, in a recent order, the High Court of Gujarat observed,

“…Marital rape is in existence in India, a disgraceful offence that has scarred the trust and confidence in the institution of marriage…It is a non-consensual act of violent perversion by a husband against the wife where she is abused physically and sexually…”

Exception 2 to s. 375 IPC finds roots in the archaic English notion that a wife is but a subservient chattel of her husband. Under what is known as ‘Hale’s Principle’, a husband could not be held guilty of raping his wife on the ground that the wife gives up her body to her husband at the time of marriage. However, this notion has since been given up in the United Kingdom itself, where marriage is now understood as an equal partnership between man and wife.

While determining criminality, motive and mens rea are of foremost relevance. Exception 2 to S. 375 IPC, as it stands today for adult married women, circumvents this basic aspect of criminal law. Legislators and courts now have the task of finding a balance between the criminality of the act and a possible misuse of the law protecting married women from sexual abuse.

Authors (L-R): Samarjit Pattnaik (Partner), Naomi Chandra (Senior Associate) and Satyam Chaturvedi (Associate)
Authors (L-R): Samarjit Pattnaik (Partner), Naomi Chandra (Senior Associate) and Satyam Chaturvedi (Associate)
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