This blog is inscribed by Gayathri S.
This paper focuses on how Section 375 of the Indian penal code, is explicitly ignorant towards consent when it comes to a marriage. The paper aims to answer two major questions. Under Section 375 of IPC, what does consent stand for and what is the age limit for any legal marriage in India. The paper goes forward with how the section contradicts other legislations such as and the prohibition of Child Marriage Act, 2006 and the constitution of India. The paper seeks to find what the way ahead is and how important it is for the criminalization of marital rape.
Introduction
Section 375 of the Indian penal code defines rape and states the exceptions to the same. The essentials for rape are the definition of it to be fulfilled and consent of the woman. Both of these have various dimensions to it which has been states in the section. rape is said to be an committed by a man when he penetrates his penis to any extent[1] or inserts to any extent any object or part of body not being the penis[2], or manipulates any part of the body of a woman to cause penetration[3], or applies his mouth[4] into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person.
This act has to happen against her will and without her consent. In cases where the consent is taken it must be when it has been obtained by putting her or any person in whom her interest vests in fear of death or hurt, or when the man is aware that he is not her husband and she believes that she is lawfully married to him or when such consent is given in a state of intoxication or unsoundness of mind. The next important aspect is that she is under eighteen years of age. The word consent has also been explained under the section. Consent is an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non- verbal communication, communicates her willingness to participate in that specific sexual act. It is imperative to note that if she does not physically resist the act; it should not be presumed that she has consented to the same.[5]
There are two exceptions to the act of rape. First, a medical procedure or intervention shall not constitute rape and second, sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age will not constitute rape.
Secondly, the contradictory age factor within the section itself. To be more precise, the exception assumes that within a marriage consent plays no role whereas in other cases, it is a factor which determines whether the act is a rape. Moreover, und the exception the age for marriage or sexual intercourse after marriage is above 15 years of age, at the same time the section lays down that with or without consent any sexual intercourse under eighteen years of age constitutes rape. Thus, the section contradicts itself at this point.
Child Marriage Act and Section 375
The child marriage act clearly specifies that a child is a person who if a male has not completed 21 years of age and who if a female has not completed eighteen years of age. The same definition applies to the Act. What is imperative to understand here is that this legislation specifically prohibits the marriage of children and is voidable at their option. The act further punishes those involved in solemnizing a child marriage.
In such cases where child marriage is prohibited, it is completely contradictory on the face of a legislation to validate sexual acts which takes place between children above the age of fifteen and below the age of eighteen years of age. the exception to Section 375 does not taken into account the conditions of a void child marriage which include the minor taken or enticed out of keeping of lawful guardian or when the minor is by use of force of compulsion induced to go from any place.[6] These conditions may fall into the circumstances under which a rape takes place within the ambit of Section 375.
The Act fails to be accurate when it comes to who is a minor and within what age is marriage in the society even acceptable. The exception fails to take into account the children within the age group of 15 to 18 can be exploited into sex trafficking, gang rape etc. The specification of age into the exception makes it all the more controversial not only with respect to child marriages but also impeding the fundamental right of every child in this country. The defense that most of the Indian population is illiterate or uneducated does not help here. The same defense is why there Is a need to either amend or scrap this exception.
Furthermore, this exception of sexual acts of a man with his wife, who is not under the age of 15 years, creates discrimination between the unmarried children below eighteen years of age and married children who are within the age group of fifteen to eighteen years of age. The section therefore violates Article 14 of the Indian constitution and Section 12 of the child marriage act.
Precedents and Arguments
Recent judgments of various high courts have held on whether marital rape infringes or breaks the institution of marriage in the society. The Supreme Court in the case of Independent Thought v. Union of India[7] held that marriage is personal. Moreover, the Indian state criminalizing marriage itself can destroy the institution of marriage. It held that if restitution of conjugal rights and judicial separation has not destroyed the institution of marriage criminalizing of marital rape cannot. In the year 2018, the Gujarat High Court held that non consensual act of rape violates the trust and confidence which has broken the institution of marriage.[8]
The Section 375 of the Indian penal code with the exception discriminates between women who are raped by their husbands and are not protected by the law for rape and sexual harassment. This is a clear violation of Article 14 of the Indian constitution which holds that nobody must be discriminated in the eyes of law. The fact that marital rape exists is very basic from the fact the section clearly establishes when the act is against the will of a woman and without her consent or when her consent is coerced.
Furthermore, the exception violates Article 21 of the Indian constitution. The article states that no person shall be denied of his life and personal liberty except according to the procedure established by law. This exception creates a discrimination of distinguishes between rape of unmarried and married women. The Article 21 over years has incorporated, privacy, health, dignity, safety conditions to a name a few under the personal liberty radar.
The case of marital rape is very much under the factor of personal liberty. Marriage as an institution is very much personal and a society is looked upon as something that determines one’s privacy and dignity. For this very reason it is significant to understand that marital rape must be criminalized not only to protect the integrity and dignity of the institution of a marriage but also to protect a person’s personal liberty, privacy and bodily integrity under the Article 21 of Indian constitution which is a fundamental right.[9] The following is very important because one of the strongest precedents hold that right to privacy includes decisional privacy which reflects the ability to make intimate decisions which involve a person’s sexual or procreative nature and decisions in respect of intimate relations.[10]
At the same time there is no legal precedent to establish that a woman loses her right to consent for any sexual activity upon marriage. And such consent violates the institution of marriage in the society.
Way Forward
There is very little data when it comes to the number of cases registered by the women when it comes to marital rape. An important note is that criminal law falls within the concurrent list and it is the states who implement them. Each state has its diversity and contrast. Thus, it is very important for them to take the first foot ahead.
Initially they can start by setting up bodies and organizations for recording the marital rape cases or a study can be conducted to find out the cases that arise in a month or in a yearly basis. The state government and authorities need to understand that criminalizing marital rape is required in order to save the institution of marriage. Awareness programmes can be conducted through meetings, announcement on radio, newspapers etc. The next and most important step is to amend the Section. this amendment is not only with respect to criminalizing marital rape but also to ensure that such rape does not take place amongst minors who are under eighteen years of age. This amendment has to come quick and soon.
Marriage does not thrive on sex and the fear of frivolous litigation should not stop protection from being offered to those caught in abusive traps, where they are denigrated to the status of chattel.[11]
References
- The Indian Penal Code, 1860, S.375
- The prohibition of Child Marriage Act, 2006, Section 12
- Independent Thought v. Union of India, 10 SCC 800 (2017)
- Nimesh Bharatibhai v. State of Gujarat, SCC 732
- Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1
- Justice K.S Putuswamy v. Union of India, (2017) 10 SCC 1
- Marital Rape and Indian Legal Scenario, Priyanka Rath, <https://www.indialawjournal.org/archives/volume2/issue_2/article_by_priyanka.html>
[1] The Indian Penal Code, 1860, S.375(a)
[2] The Indian Penal Code, S.375(b)
[3] The Indian Penal Code, S. 375(c)
[4] The Indian Penal Code, S. 375(d)
[5] The Indian Penal Code, S. 375, Explanation 2
[6] The Prohibition of Child Marriage Act, 2006, Section 12
[7] Independent Thought v. Union Of India, 10 SCC 800 (2017)
[8] Nimesh Bharatibhai v. State Of Gujarat, SCC 732
[9] Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1
[10] Justice K.S Putuswamy v. Union of India, (2017) 10 SCC 1
[11] Marital Rape and Indian Legal Scenario, Priyanka Rath, <https://www.indialawjournal.org/archives/volume2/issue_2/article_by_priyanka.html>
