The Supreme Court on Wednesday resolved a serious legal contradiction regarding child rape. The court read down an exception clause under Section 375 of the Indian Penal Code, the provision that criminalises rape, which allowed men to have sexual intercourse with girls aged between 15 to 18 and escape punishment for rape if they were married to them.
The court held that the distinction made between a married girl child and an unmarried girl child was illogical and ran against the provisions of the Prevention of Children from Sexual Offences Act. Such a distinction also violated a child’s right to liberty and dignity under Article 21 of the Constitution. Irrespective of her marital status, sex with a minor girl will now attract a minimum rigorous imprisonment of ten years.
However, the court has deliberately kept away from commenting on adult marital rape, stating that the question was not raised in the petition before it. But the fact that the court chose to make this explicit clarification makes one thing clear: the logic used to criminalise sex with a minor wife stands on the foundations of consent, which is also the central argument invoked by those who want non-consensual sex in all marriages to be made illegal. In fact, the Supreme Court said on Wednesday that marriage is not institutional but personal and nothing short of making marriage itself illegal would destroy that institution. In this personal relationship, the court said a man and a woman are on an equal footing. Gone are the days when women were considered the property of men.
Sex with minor wife
Wednesday’s verdict was delivered in response to a public interest litigation filed by Independent Thought, a non-governmental organisation working in the area of child rights. The primary question before the court was this: Can sex with a wife who is between the age of 15 and 18 be exempted from the definition of rape when almost every other statue outlaws sexual intercourse with a minor?
Exception 2 of Section 375 of the Indian Penal Code jeopardised a gamut of laws that has evolved as a consequence of India’s international obligations to protect the rights of children. This ideal is enshrined in the Constitution too in the form of Article 25 (3), which allows Parliament to enact laws to secure the welfare of women and children.
In particular, Exception 2 of Section 375 of IPC was in direct contradiction to the POCSO Act, a law passed in 2013 under which the definition of a child is that of all individuals below the age of 18. Aggravated sexual assault of a minor is a serious offence and would attract a punishment of 10 years rigorous imprisonment.
Two other significant statues undermined by the IPC section were the Prohibition of Child Marriage Act and the Juvenile Justice Act, both of which defines a child as someone below the age of 18. In fact, the Juvenile Justice Act clearly states that a child in danger of being married off must be given protection.
While the petitioners pointed to these contradictions, the Union government chose to defend the exception given for sexual activity with a minor wife. The government said a girl child is deemed to have consented to sexual intercourse with her husband either expressly or by necessary implication when she gets married. This was perhaps the most bizarre of the many justifications offered by the Centre, forgetting the fact that the age of consent under Indian law is emphatically fixed at 18. When even explicit consent is not considered legal if the person is not 18 years old, how could an implicit consent be determined?
Secondly. the Centre said child marriages are being performed as a matter of tradition across India, with the counrty having an estimated 23 million child brides. This tradition should be respected, failing which the institution of marriage could be undermined. Third, the Centre added that a Parliamentary Committee had considered the question of making sex with a minor wife illegal and decided against it.
In his opinion, Justice Madan B Lokur criticised these positions and questioned the very concept of marriage being institutional. The judge said:
“Marriage is not institutional but personal – nothing can destroy the ‘institution’ of marriage except a statute that makes marriage illegal and punishable. A divorce may destroy a marriage but does it have the potential of destroying the ‘institution’ of marriage? A judicial separation may dent a marital relationship but does it have the potential of destroying the ‘institution’ of marriage or even the marriage? Can it be said that no divorce should be permitted or that judicial separation should be prohibited? The answer is quite obvious.
In his concurring opinion, Justice Deepak Gupta made it clear that an unconstitutional custom cannot be condoned just because it was considered a tradition.
Adult marital rape
However, despite taking a strong position and criminalising sex with a wife who has not attained the age of 18, the Supreme Court showed great reluctance in extending this argument to adult marital rape. In fact, the judges were cautious not to entertain the argument of privacy that was made during the proceedings, with the petitioners urging the court to include the right to privacy as a reason for striking down the exception given to rape under Section 375 of the IPC.
Disagreeing with the petitioners, Justice Gupta said:
“I have purposely not gone into this aspect of the matter because anything said or urged in this behalf would affect any case being argued on ‘marital rape’ even in relation to ‘women over 18 years of age’. In this case, the issue raised is only with regard to the girl child and, therefore, I do not think it proper to deal with this issue which may have wider ramifications especially when the case of girl child can be decided without dealing with the issue of privacy.”
Irrespective of this comment, many of the arguments used by the judges to criminalise sex with a minor wife would apply to adult marital rape too. If consent is paramount in establishing the legitimacy of the sexual activity, how can a distinction be made between women below the age of 18 and above? In the case of a minor, sexual intercourse is deemed rape because the law considers a minor incapable of providing consent. In other words, it is always a “no” when it comes to a minor. But in the case of an adult woman, even if she says an emphatic “no”, her husband could continue forcing her to have sexual intercourse without being charged for rape.
The court said it cannot make a distinction between a married and an unmarried child in the context of rape as it would create two classes of people, leading to discrimination and a violation of Article 14 of the Constitution, which guarantees equality before law. This reasoning too would apply to adult women.
Besides, if the Supreme Court believes marriage is personal and not institutional, the same standard should apply in the context of adult women as well. If tradition cannot be used as an excuse to exempt sex with a minor wife above 15 years of age, can that same tradition be used to justify non-consensual sex between two adults?