A few days ago, the Supreme Court decided to hear a petition regarding the position of marital rape of children between the ages of 15 and 18. The Centre, which was the respondent in the case, regrettably took a position that allegedly allows marital rape of minors in the garb of “sanctity of marriage”. The Protection of Children from Sexual Offences Act, 2012, penalises consensual sex with any person under the age of 18. So technically, if a girl is 18 or below, the husbands can be booked under this Act, but the IPC rape (section 376) law exempts a husband if the wife is above 15 years. A PIL is pending before the Supreme Court to clarify this concern. The progress made by law and society in the past 15 years with respect to children and sexual assault may be negated by the Centre’s position. By taking such a stance, it has also implicitly accepted that marital rape is not problematic.
The marital rape exception provided in the Indian Penal Code (IPC) states that sexual acts committed by a man on his wife, the wife not being under the age of 15, does not constitute rape. This means that marital rape in India does not have any legal backing as an offence and thus goes unpunished and unreported. However, such sanctity of marriage does not and cannot exist in cases where there is mental, physical or sexual violence inflicted on one of the spouses in the marriage. Parliament has also recognised the heinousness of a husband and his family being violent to the spouse by passing the Domestic Violence Act, 2005, and also the Dowry Prohibition Act, 1961. In fact, Section 498A, which criminalises cruelty in a marriage, is also a manifestation of this recognition by Parliament. That sexual violence is abhorrent and dastardly needs no repeating. However, sexual violence inflicted on the spouse in the case of marital rape is worse due to the position of trust that the husband holds over the wife. By manipulating this position, the husband commits the most heinous of crimes. The Supreme Court, in a case titled Dhananjoy Chatterjee v. State of West Bengal, has stated that the manipulation of trust that leads to rape and murder is a crime that shocks the collective conscience of society.
The marital rape exception in the IPC has another grave problem, that of age groups. Whereas, POCSO specifically criminalises penetrative assault on children by their spouses vide ss. 5(n) and 9(n). The punishment under POCSO for aggravated penetrative sexual assault (which is similar to the IPC definition of rape), ranges from a minimum of 10 years to a maximum of life imprisonment. POCSO does not have a marital exception. Further, it defines “child” as a person who has not attained the age of 18. Due to this, the effect that the IPC has on the POCSO is absurd. For instance, in West Godavari district (Sessions Case No. 54 of 2015, decided on 25.7.2016 (West Godavari), the Court refused to convict the accused because he was married to the child. Perhaps the only way to correct this is to hold that the marital rape exception in the IPC is unconstitutional. The last time such a petition was moved in the Supreme Court, it was withdrawn by the party. Currently, a similar petition is sub judice in the Delhi High Court. This leads us to the question of whether our courts empathise with the problems of gender justice.
A legal maxim that one is taught in law school is that justice needs to be manifestly seen to be done. For gender justice to be done, then, there must be more women judges. The rights of women and children need to be protected by doing away with the marital exception. It has to be recognised that the “sanctity of marriage” does not extend to acts of violence of any kind.
(M.V. Mukunda is a fifth year law student from the National Law School of India University, Bengaluru)