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Mon, 11 Dec 2017

Northeast Today

Criminalising Marital Rape of Child Brides – A Glass Half Full

Criminalising Marital Rape of Child Brides – A Glass Half Full
December 06
15:08 2017

November Edition, Society, Ankita Goswami

On October 11, 2017, the Supreme Court of India delivered a landmark judgement by criminalising sex with child brides and this has brought relief to millions of child brides (who shouldn’t have been brides in the first place) across the country. This decision partially criminalised marital rape, which, though only in relation to child brides, is the first time the apex court addressed the issue directly and gave a favourable judgement.

The PIL (Independent Thought v. UOI) was filed by an NGO, Independent Thought, challenging the age limit in Exception 2 of Section 375 of the Indian Penal Code. Sec. 375 defines ‘Rape’, and its 2nd exception stated that sexual intercourse by a man with his own wife, who is above the age of 15, will not be considered rape. The petitioner sought to increase the age limit from 15 to 18 years, considering that all the other child protection laws in India set the age of consent for a girl child at 18 years. The Protection of Children from Sexual Offences Act (POCSO) states that a girl under the age of 18 is a ‘child’ and, hence, does not have the capacity to take an informed decision about engaging in sexual intercourse. After the Criminal Law (Amendment) Act, 2013, the age limit of intercourse with a girl to be considered rape under IPC, irrespective of consent, was increased from 16 to 18 years, bringing all the child protection laws in conformity with one another. The non-applicability of these provisions on child brides was in contradiction to not just domestic laws, but also India’s international obligations.

By declaring the exception under Section 375 “discriminatory, capricious and arbitrary”, the apex court accepted the petitioner’s argument that the distinction in terms of punishment related to rape of an unmarried child and rape of a married child was unconstitutional and was in clear violation of Article 14, 15 and 21 of the Constitution, along with being contradictory to the provisions of the POCSO Act. The court also acknowledged that allowing marital rape of a girl child to continue weakened the enforcement of the Prohibition of Child Marriage Act which explicitly prohibited child marriages in India. Thus, the judgment might lead to stronger enforcement of the Act, terminating the practice completely.

However, child brides weren’t the only ones suffering under a legal vacuum. There still exists no proper law to protect an adult bride from non-consensual sexual intercourse within the ambit of a marriage. In a 2011 study by International Centre for Research on Women, one in every five Indian men who were surveyed admitted to have forced their wives into sex. In 2013, the UN Population Fund stated that more than 2/3rds of married women in India, aged between 15 to 49, have been beaten, raped or forced to provide sex. With harrowing statistics like these, it’s distressing that marital rape hasn’t been outlawed in India yet. The Justice Verma Committee, which was set up following the Nirbhaya case to recommend amendments to laws relating to sexual offences, had recommended that the law should specify that marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation. But the government refused to include this recommendation.

In every case questioning the legality of marital rape, the Government has argued that marital rape should not be outlawed because the law could be misused to harass men and disrupt the ‘institution’ of marriage. Justice Madan B. Lokur dealt with the later argument in the Independent Thought case by stating that marriage is a personal matter, not institutional, and nothing can destroy the ‘institution’ of marriage unless a statute explicitly makes marriage illegal and punishable. Citing possible misuse of law to not criminalize marital rape is probably the government’s most misogynistic argument. It has become more important for the government to protect a man’s choice to force his wife to have sex with him whenever he pleases, rather than to uphold a woman’s human right to protection against sexual abuse. Physical, mental and emotional trauma, free will, and probably unwanted pregnancy, of a married woman are apparently a fair price to pay to avoid a simple trial.

Many legislators have also expressed the view that criminalizing marital rape would mean amending the Hindu Marriage Act which upholds the traditional belief that denying sex to her husband goes against the duties of an ideal wife. “Traditionally” women were treated as property of men and allowing marital rape to continue unpunished now only carries forward this archaic tradition at a day and age where women are equal bread winners of a family and are being appointed as head of States. It dehumanises a married woman, denying her even the right to say ‘no’ in relation to her own body.

Even though the Supreme Court did not comment on the legality of marital rape as a whole in the Independent Thought case, it’s important to note that the reasoning given by the Court can apply to married adult women as well. The Court acknowledging marriage as personal and not ‘institutional’ has invalidated the government’s strongest argument against criminalizing marital rape. Furthermore, if the court believes that distinguishing between a child bride and a child in terms of their protection under the law is violation of the right to equality, hopefully it shouldn’t take long for the Apex Court to acknowledge that providing legal recourse against all kinds of sexual abuse to an unmarried woman, but creating an exception for married woman is also a violation of right to equality. While this case dealt with capacity to consent, it is high time to accept that an adult woman, who is considered capable of giving consent, is also equally capable of denying it; a right that physically does not disappear once she gets married, and, thus, it shouldn’t disappear legally too.

(The author is a law graduate and a writer by passion based in Guwahati)

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