In a landmark judgement, the Apex Court ruled out the exception u/s 375(2) of the IPC as being unconstitutional, stating that if any husband engages in sexual intercourse with his minor wife, consensual or not, it will amount to rape and such husband can be subjected to up to 10 years of imprisonment under the IPC or even life imprisonment under the POSCO (Protection of Children from Sexual Offences) Act, 2012. Vedatrayee, a young Kolkata-based lawyer, in her weekly column, examines the minimum age of consensus for sex and marital rape.  A Different Truths exclusive.

The two division bench of Justice Madan B Lokur and Justice Deepak Gupta in Court 5 of the Supreme Court delivered a judgement running to 126 pages, that, although supposed to be a landmark, is a cipher of the prolonged existence of an uncalled for tradition, once again, which had been a mockery of civilised society for the last 77 long years. On Wednesday, 10^th of October, 2017, the Apex Court ruled out the exception u/s 375(2) of the IPC as being unconstitutional, stating that if any husband engages in sexual intercourse with his minor wife, consensual or not, it will amount to rape and such husband can be subjected to up to 10 years of imprisonment under the IPC or even life imprisonment under the POSCO (Protection of Children from Sexual Offences) Act, 2012. The law that existed this far was a confused legal hotchpotch, which failed to provide for any uniform age for marriage, consent for sex and wife’s age, which uniformity has been achieved by this ruling.

The SC has, thus, established a uniform 18 years as the age of consent, the age of marriage and the exception to rape under section 375 of IPC, which had been different ever since IPC came into force in 1860. The ruling was a result of a petition filed by NGO Independent Thought challenging the validity of Sec 375 (2) on grounds of protection of minor wives who are a victim of tradition. The Centre put forward three merely ill-founded objections to these contentions all of which were rejected by the Bench.

The Centre had said that, first, the minor wife by consenting to marriage has agreed to sexual intercourse with the husband. It is quite an open secret now that majority of the marriages, especially in the rural areas, are forced where the consent of the bride is not paid heed to. In fact, even the girls giving consent are not under the proper impression of what a conjugal life should be like. How can intercourse be consensual when the marriage is not and who would decide if the marriage was consented to once it is done? Secondly, the Centre said, Child Marriage (which is legally banned and punishable all across India) is ‘traditionally’ prevalent in many parts of the country and tradition must be respected. Leave alone social development. Leave alone economic independence and education. What about the science? A female body is not ready for getting impregnated before a certain age, neither physiologically nor psychologically.

Child Marriage has not only resulted in the slow development of the economy it has resulted in a sharp rise in the rate of maternity deaths. Thirdly, the 167^th report of Parliamentary Standing Committee of Rajya Sabha (March 2013) recorded that several members felt marital rape has potential to destroy the institution of marriage. Justice Lokur has been recorded as stating, “In law, it is difficult to accept any one of these justifications. There is no question of a girl child giving express or implied consent for sexual intercourse. The age of consent is statutorily fixed at 18 years and there is no law that provides for any specific deviation from this.” He also said that the exception given in the IPC creates an artificial distinction between a married girl child and an unmarried girl child. Justice Gupta observed ‘The State is talking about the reality of child marriages. What about the reality of the rights of a girl child? Can this helpless unprivileged girl be deprived of her rights to say ‘yes’ or ‘no’ to marriage? Can she be deprived of her right to say ‘yes’ or ‘no’ to having sex with her husband, even if she has consented to the marriage? In my view, there is only one answer to this and the answer must be a resounding ‘no’.

However, it must be stated that although praiseworthy and historically significant, the ruling has several unanswered questions. Firstly, the hopes that are raised that this would end in the criminalisation of marital rape are blatantly false. If such were the intentions, the age of marital intercourse would not have been limited to 18. The court is expressly silent on the consent of a wife who is 18 years of age or above. “We make it clear that we have refrained from making any observation with regard to a marital rape of a woman who is 18 years of age or more since that issue is not before us at all. Therefore, we should not be understood to aver to that issue even collaterally.”

Marital Rape is a farfetched dream. The fact that marital rape is not penalised in India and that the Apex Court is repeatedly circumventing the issue whenever the question is raised bears testimony to the camouflaged patriarchal mentality of the Nation. The day marital rape is made criminal, for both spouses, I must state, and the judgement is celebrated by each and every human being in this or belonging to this country, will be the day when we will be justifying Article 14 of the Constitution.

Another important dimension that cannot be ignored is the unreasonably high age of consent. Keeping in mind the changing trends of mental development and social attitude of children in recent times, 18 years is high when it comes to consent because of puberty sets in at a much lower age. The age of consent is much lower in any countries all over the World. Germany, for instance, has 14 years and it is as low as 13 years in China. In India, 16 years ought to be a balanced age of consent keeping in mind the health and medical conditions. Where there is consent and the age gap between both partners is less than five years it shall be decriminalised. This, in my opinion, would decrease the number of death incidents in the nature of Honour Killings and the likes.

Moreover, there is always the question of the bringing rape charges against the husband by overcoming social compulsions, which again makes any implementation much harder. It would also give rise to complications since the court is silent on the sexual intercourse between boys and girls below 18 years with the girl’s consent since the age of consent is now 18 without any exception.

The Court has also not spoken about the legitimacy of the children taking birth from such unions. Like any legal outcome, this ruling also has both positive and negative aspects. And despite several ambiguities, it is nonetheless an attempt against a social evil and towards better protection and implementation of child and woman rights. This attempt must be praised as another fruitful labour of the Apex Court.

©Vedatrayee Dutta

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Vedatrayee Dutta

A young lawyer by profession from The City of Joy, Vedatrayee is currently pursuing LLM from Calcutta University. She is a Bharatanatyam danseuse who has won a number of prestigious awards and performed in several National Festivals and Competitions throughout the country. Another passion that stirs her from deep within is the welfare of street and abandoned animals. She volunteers for a sociocultural endeavor, Swatantra, striving for the social, cultural and behavioral empowerment of the population.

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