Sex With Child Wife Is Rape: Supreme Court

 “Such a girl child has no recourse to law under the provisions of the IPC notwithstanding that the marital rape could degrade and humiliate her, destroy her entire psychology, pushing her into a deep emotional crisis and dwarf and destroy her whole personality and degrade her very soul.”

unsafe women

–     Supreme Court Bench of Justices Madan B Lokur and Deepak Gupta

                                          In a latest verdict grabbing news headlines, the Supreme Court has on October 11 criminalised sexual intercourse by a husband with his wife who is below 18 years of age. It will henceforth be considered as rape. In effect, the judgment has done away with the protection husbands enjoyed under Indian Penal Code Section 375 Exception 2 that allows a husband to have sexual intercourse with a minor wife, provided she is not below 15 years of age. This is welcome in the sense that it will certainly  discourage child marriages in India which otherwise has been rampant in India cutting across religious lines!

                                    While craving for the exclusive indulgence of my esteemed readers, let me inform them that the decision came on a Public Interest Litigation filed by NGO ‘Independent Thought’. A two-Judge Bench of Supreme Court comprising of Justices Madan B Lokur and Deepak Gupta decided to read down the above provision of IPC by inserting 18 years in place of 15 years, to make the exception to IPC Section 375 read as, “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape.”

                                          For my esteemed readers exclusive indulgence, let me also inform them that by doing so, the Supreme Court has harmonized the law under IPC with the provisions of the Protection of Children from Sexual Offences (POCSO) Act 2012 under which “penetrative sexual assault” with a girl below 18 years by a person (even if related to the child through marriage) is a punishable offence under Section 5(n), the punishment for which extends from ten years prison term to even life imprisonment. The Bench read down this exception arguing that it was inconsistent with other statutes dealing with children such as The Prohibition of Child Marriage Act (PCMA), Juvenile Justice Act and the POCSO Act as all these have fixed the minimum age of the girl child for sexual relations at eighteen.

                             To put things in perspective, the Bench of Supreme Court held categorically that, “…In our opinion, sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. The exception carved out in the IPC creates an unnecessary distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. The artificial distinction is discriminatory and is definitely not in the interest of the girl child.” It has thus left not even an iota of doubt that henceforth sexual intercourse with a girl who is 18 years of age shall be considered a rape. It shall make no difference whether she is married or not. Undoubtedly, this will go a long way in checking the sexual exploitation of a girl who is below 18 years of age.

                                      Not stopping here, the Bench also added that, “It was also contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in international conventions…and to the philosophy behind dome statutes, the bodily integrity of the girl child and her reproductive choices.” It must be appreciated here that the Supreme Court while rendering this landmark judgment has taken into account the principles enshrined in Article 15(3) of the Constitution as also the commitments which India gives time and again in international conventions of preserving the bodily integrity of the girl child as also her reproductive choices. The judgment added it was “dreadful” that it also “turns a blind eye to trafficking of the girl child..which is such a horrible social evil”. Very rightly said!

                                       Truth be told, the Bench noted this glaring anomaly in IPC and POCSO. It minced no words in saying that, “A married girl between 15 and 18 years of age could be a victim of aggravated penetrative sexual assault under POCSO Act but she cannot be a victim of rape under the IPC if the rapist is her husband, since the IPC does not recognize such penetrative sexual assault by a husband as rape. Such a girl child has no recourse to law under the provisions of the IPC…However such a victim could prosecute the rapist under the POCSO Act. We see no rationale for such an artificial discrimination.”

                                      One has to appreciate that this was long overdue. There can be no denying this! Supreme Court has thus, no doubt, taken a right step in the right direction. It will certainly help minor victim to pursue rape case against her husband who tend to take her for granted.

                                       Truly speaking, the order also comes as a boost to curb child marriages, as the protection for husbands under the Exception clause of IPC Section 375 was seen by the court to “encourage” child marriages. Interestingly enough, Centre sought to oppose the PIL and submitted that child marriage, though a crime, is a social reality in the country, home to 23 million child brides, with a high prevalence among Scheduled Castes (34.9 percent), followed by Scheduled Tribes (31 percent) and lower wealth index (44.1 percent). It took the plea that with marriage, the girl child consents for sexual intercourse as well. Centre too has a point which cannot be lightly dismissed.

                                             As it turned out, the Bench strongly felt that, “There is no question of a girl child giving express or implied consent for sexual intercourse…those days are long gone when a married woman or girl could be treated as subordinate to her husband or at his beck and call or as his property. Constitutionally, a female has equal rights as male…Traditions that might have been acceptable at some historical point of time are not cast in stone. If times and situation change, so must views, traditions and conventions.” The court was assisted with research by two lawyers Gaurav Aggarwal and Jayna Kothari who displayed ample material on the detrimental effects of child marriage on the girl child’s reproductive, physical and mental health. It even impacts children born of such marriages. Without doubt, this landmark judgment forcefully espouses the woman’s right to be treated on par with men and rejects outright the age old dictum that woman or girl is subordinate to her husband and is like his property. Who can question this?

                                Needless to say, Justice Lokur in his separate judgment said, “India realizes the dangers of early marriages, it is merely dishing out platitudes and has not taken any concrete steps to protect the girl child from marital rape except enacting the POCSO Act.” It is high time and Centre must take with full seriousness what Supreme Court has said and work accordingly. Leaving it to the Centre and States to proactively curb child marriages, he added, “Welfare schemes and catchy slogans are excellent for awareness campaigns but they must be backed by focused implementation programmes, other positive and remedial action so that the girl child can look forward to a better future.” Centre as well as all States must adhere to what the Supreme Court has so rightly said!

                                        It must be added here that Justice Lokur wrote in his judgment which ran into 70 pages that, “The only pragmatic opinion available was to read (this) exception to Section 375 of the IPC in a purposive manner to make it in consonance with the POCSO Act, the spirit of other pro-child legislation and the human rights of a married girl child.” Justice Gupta who wrote a separate judgment concurring with Justice Lokur said the said exception was liable to be struck down as it is “arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Article 14, 15 and 21 of the Constitution of India”.

                                  One must bring out here that Justice Lokur while pointing out the injustice and anomaly enshrined in the exception to Section 375 itself which mandated that sex with a girl below 18 years of age, with or without her consent, was statutory rape  made it clear that an unmarried girl child can prosecute her rapist but a married girl child aged between 15 and 18 could not even do that. He went on to say eloquently that, “A child remains a child whether she is described as a street child or a surrendered child or an abandoned child or an adopted child. Similarly, a child remains a child whether she is a married child or an unmarried child or a divorced child or a separated or widowed child. At this stage we are reminded of Shakespeare’s eternal view that a rose by any other name would smell as sweet – so also with the status of a child, despite any prefix”.

                                  It must also be added here that Justice Gupta also clarified that the judgment will have “prospective effect” meaning it will not apply to past cases and that cognizance of such offences can be taken only in accordance with the provisions of Section 198(6) of the Criminal Procedure Code. The provision says that court shall not take cognizance of an offence under Section 376 IPC “if more than one year has elapsed from the date of commission of the offence”. This to check the arbitrary misuse of this provision which has been rightly inserted.

                             To be sure, the Bench, however, clarified that it was not making any observation on “marital rape” of a woman who is 18 years of age and above as the issue was not before the court. The question whether marital rape should be criminalized is pending before the Delhi high Court where the Centre has filed an affidavit opposing this saying that doing so may destabilize the institution of marriage apart from being an easy tool for harassing husbands. I personally feel that marriage does not confer an unfettered licence to rape a woman and it must be punishable doubly as the husband betrays completely the unflinching trust posed by her in him by marrying him. Sex has to be with consent of a woman and not without her consent.

                                 Anyway, coming back to the main topic, this latest judgment also referred to the counter affidavit of the Government of India which drew the attention of the court to the National Family Health Survey – 3 (of 2005) which states that 46 percent of women in India between the ages of 18 and 29 were married before the age of 18 years. On PCMA which under Section 3 says that a child  marriage is not void, but only voidable at the option of any of the parties, the judgment categorically said that, “In other words a child marriage is sought to be somehow ‘legitimized’ by the Union of India and the onus for having it declared voidable or a nullity is placed on the child bride or the groom”. In fact, this Section puts the burden on the child bride or groom to seek a declaration of nullity from a court of law.

                                   In this regard, the Supreme Court lauded Karnataka for its commendable act of amending the Prohibition of Child Marriage Act (PCMA) to make child marriage automatically void. In Karnataka, the husband of a girl child would be liable for punishment for child marriage under the amended PCMA; for penetrative sexual assault or aggravated penetrative sexual assault under the POCSO Act; and if the husband and the girl child are living together in the same or shared household for rape under the IPC.

                                      In his separate judgment, Justice Dipak Gupta investigates the reason behind the “magic figure” of 15, the age from which a husband can have sexual intercourse with his minor wife. His research, the Judge notes, revealed that the reason dates back to 1940, when the age of consent for a girl was 16, the age of marriage 15 and the age under the exception clause 15. In 1975, the age of consent was 16, the age of marriage 18, and the age under exception 15. Today, when the age of consent and marriage of a girl are 18, the age under the exception is still 15. He said that the magic figure is based on the fact that it has been existing for a long time.

                                    As it turned out, the lawyer of Centre in August while citing tradition wanted status quo and had contended that the country’s socio-economic realities cannot be ignored and that the exception clause was necessary to “protect the institution of marriage”. To this, the Apex Court responded saying that, “Unfortunately…if a girl child between 15 and 18 years is married, her husband can have non-consensual sex with her without being penalized, only because she is married to him, and for no other reason. The right of such a girl child to bodily integrity and to decline to have sexual intercourse with her husband has been taken away”.

                                      Be it noted, Justice Gupta also answered the question whether the court by invalidating the exception will be creating a new offence which the legislature did not intend to make. He said that, “In my view, as far as this case is concerned, this Court is not creating any new offence but only removing what was unconstitutional and offensive.” It is thus clear that the Supreme Court has not created any new offence but only removed what was unconstitutional and offensive and by doing so if an offence is created, so be it. Justice Gupta also said that child marriage puts a girl’s health at risk. He said that, “When a girl is compelled to marry before she attains the age of 18 years, her health is put in serious jeopardy”.

                         Senior Supreme Court advocate Indira Jaising while calling the verdict “progressive” had said the logical outcome of the judgment was to make child marriages automatically void. However, she said the judgment should not be used to criminalise the “experimentalism of the body” seen among adolescents who are aged between 15 and 18 years. Her point is valid!

                             Another senior Supreme Court advocate Prashant Bhushan while lauding the judgment as correct and harmonizing the IPC with other anti-child abuse laws like POCSO said that, “The judgment reinforces the fact recognized by other laws that a child is not in a position to grant or not grant consent.” Advocate Gaurav Agarwal who is the counsel for the NGO – “Independent Thought” on whose petition the Supreme Court gave this landmark judgment rightly said that, “This would compel families of boys to think twice before getting their sons married to minor girls.” But what if the parents of minor girls misrepresent her age in order to marry her off early? Then certainly they are squarely responsible for it!

                                     Supreme Court advocate Aishwarya Bhati also agreed that declaration of child marriages as void or a complete ban on child marriage is the “necessary corollary” to this judgment. Swati Maliwal who is Chairperson of Delhi Child Welfare also while welcoming the judgment rightly asked that, “What is the point of a Beti Bachao Beti Padhao Andolan if the girl is married off at 15 itself?” Rightly said! Sudha Ramalingam who is a senior advocate said the judgment was rightful as it was now synchronized with POCSO but said implementation would be difficult, especially in cases of child marriage, where there would be tacit approval by the family.

                                All said and done, the Bench asked the Centre and the States to take proactive steps to prohibit child marriage across the country. Centre and States must comply accordingly. The verdict has sent a loud and clear message that, “Sanctity of marriage must not be misused to cover up rape. The government cannot be oblivious to the trauma faced by a girl child married between 15 and 18 or to pro-child statutes and other human rights  obligations.”

                      In a big embarrassment for Centre, the Supreme Court upbraided the government for failing to enforce the PCMA strictly and for not criminalizing a man’s sexual intercourse with his wife aged 18 or below. It castigated and pulled up Centre saying that, “What has the government of India done? It has persuaded Parliament to convert what is otherwise universally accepted as a heinous crime into a legitimate activity for the purposes of Section 375 of the IPC if exploiter or abuser is the husband of the girl child”.

                                 It must be mentioned here that the court was responding to a petition that was only concerned with the “violation of the rights of girls who are married between the ages of 15 and 18 years”. So the court restricted itself only to it and did not elaborate on marital rape by adult man with his major wife who is above 18 years of age.

                            Poonam Muttreja who is Executive Director of Population Foundation of India rightly said that, “While the trauma of forced sex for the minor is in itself an unfair burden, it could also jeopardize her health and that of the infant, should an untimely and unwanted pregnancy occur”. Vidya Reddy of Tulir, Centre for the Prevention & Healing of Child Sexual Abuse wonders if this would actually deny young women medical help. She said since POCSO and the Criminal Procedure Code mandated reporting of an offence and since any sexual contact below the age of 18 was an offence, the health and well being of young people seeking medical care, for a safe delivery for instance, could be compromised and they could be sucked into the criminal justice system. She rightly said that, “This, in many ways, could deny them good healthcare and they may seek alternative forms of treatment as they would not want their families broken up.” In this whole process, the very life of the minor girl can be at stake!

                               It is high time and Centre too must realize that marriage does not confer an unbridled licence to a man to trample upon a woman’s legal and human rights which includes the right to say no to sex whenever she wants with no ifs and buts irrespective of whether she is major or minor and take urgent steps to criminalise marital rape with no exceptions whatsoever! I am very clear in my mind: Sex with woman can only and only be with her consent and under no circumstances whatsoever can be without her consent even if she is above 18 years of age!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

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