The issue of marital rape has caused some polarised debates in the past couple of days. The Centre’s primary argument to the Delhi High Court in upholding the marital rape exemption under Section 375 of the IPC was: The institution of marriage must be protected, and criminalising forced sex by a man on his wife would destabilise it.
A similar argument was presented by the Centre a couple of weeks ago when the Supreme Court was hearing a petition by Independent Thought, an NGO which has challenged the validity of the exception under Section 375 when it came to the rape of a minor wife above 15 years of age.
However, it looks like the apex court at least is asking more progressive questions in this case when the matter was up for hearing on Thursday. “Even if a person gets away under IPC, can he get away under POCSO?” Justice Madan B Lokur questioned.
To this, Independent Thought’s counsel Gaurav Agarwal responded that marriage was not an exception under Protection of Children from Sexual Offences (POCSO) Act. “But State authorities do not take action under POCSO too if the girl is married,” he argued, according to Murali Krishnan’s report in Bar and Bench.
Section 375 defines the offence of rape. However, it carries an exception clause which says intercourse or sexual act by a man with his wife, not below 15 years, is not rape.
Independent Thought had said in its petition that the marital rape exception is inconsistent with the increased age of consent, i.e. 18 years. So, while sexual intercourse with a girl below the age of 18 legally constitutes as rape with or without consent, this does not hold true in case of a girl who is married and at least 15 years old.
“We see a girl under 18 years of age as a child in POCSO Act, but once she is married, she is no more a child under the exception 2 to Section 375 of the IPC. This is totally inconsistent. The truth is that a girl over 15 is still a child, married or not. The Parliament has to protect the child,” Agarwal had argued.
During the hearing on Thursday, the apex court also expressed dismay on the prevalence of child marriage in the country despite the enactment of Child Marriage Prohibition Act.
Showing a nuanced approach, the bench of Justices MB Lokur and Deepak Gupta said that unilaterally terming sex with minor wife as rape will jeopardise minors who may engage in sexual acts consensually. “It is a hard reality and is unfortunate that most of the child marriages happening in the country are done by parents of the girl child. However, to this, there are odd exceptions when a minor boy and girl fall in love and marry on their own,” the bench said.
The court also said if it was to strike down the exception under section 375, child marriage was a “hard reality”. It added that they had to consider what would happen to children born out of these marriages.
Agarwal however, contended that this had no impact on their objective because a girl below 18 years of age was not capable of understanding what her consent could result in. He argued that a girl between 15 and 18 years of age was not mature enough (mentally or physically) to give informed consent. Hence the exception was discriminatory, he said.