MARITAL RAPE: A PARTIAL OFFENCE IN INDIA

 REALITY OF INDIA India is a country where one social media post can make someone a celebrity within a day, India is country where if a rape...

 REALITY OF INDIA

India is a country where one social media post can make someone a celebrity within a day, India is country where if a rape is committed it can unite the whole nation to make pressure on Legislature to amend the penal laws, India is a country where a penalty of even 1 RS. can be imposed in the 21st century, India is a country where, whether the Judiciary holds a person guilty or not but the media has full power to declare him/her guilty of an offence, everything is possible in India. But, when it comes to "Marital rape", then whether Feminist or anti-feminist, whether Misogynist or Philogynist, whatever their views may be on this, we are still not in the position to absorb that there are only 36 Nations in the world(as per data of 2020) of 200+ nations where Marital rape is not criminalised and India is one of them.

MARITAL RAPE

In any of our laws, you'll not find this term. But, the term "Rape" is defined U/S 375(click to read whole section) of Indian Penal Code,1860, which in simple terms means that:" Rape is committed when a man penetrates his penis, into the vagina, mouth, urethra, anus of a woman; or inserts any object or manipulates any part of the body of a woman to cause penetration into the vagina, mouth, urethra, anus or any part of the body of such woman, without her consent or against her will".

By reading this definition one may think that, it simply uses the terms "man" and "woman" which means even a husband can be included in this. But, there only the point of debate arises, when we read EXCEPTION 2 of SECTION 375, which says that:

"Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape".

This one line of the above exception says that, if your wife is above 15 years of age then you have complete freedom to have sexual intercourse with her, whether she is willing to have or not, whether she gives you consent or not, but a husband of a wife(aged above 15 years) has no legal restriction to have sexual intercourse with her.

The above Exception only raised the concept of "Marital Rape"(Sexual intercourse by a husband with his wife, irrespective of her consent and will) and has been a hot topic in many countries.

To read my previous blogs on various legal topics click on the home page.

A SLIGHT CHANGE IN THE LAW

In 2012, the Prevention of Children from Sexual Offences Act(POCSO) was enforced, the object of which was to protect children from offences of sexual assault, sexual harassment and pornography and provide for the establishment of Special Courts for the trial of such offences and for matters connected therewith.

According to this act, a child is a person under 18 years of age.

Now comes the most important section of this act, with which are concerned is SECTION 3 OF POCSO Act,2012 which says that: 

A person is said to commit "penetrative sexual assault" if--

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(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

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(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

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(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

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(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.

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Yes, you thought it right, the definition is the same as of Section 375 of IPC, the only difference is that Section 375of IPC allows sexual intercourse with a child between 15 to 18 years if the girl is wife, whereas, Section 3 of POCSO makes no such exception and prevents every child of under 18 years from Sexual assault whether she is your wife or not.

You must be thinking that which law to be followed now? 

This answer is given by Law itself, that is, SECTION 42 A of the POCSO Act, which says that: " In any consistency between provisions of POCSO and any other law, it is the provisions of POCSO which shall prevail".

That means Section 3 of POCSO has an overriding effect on Exception 2 of Section 375 of IPC.

This means that the age limit of 15 years in Exception 2 of Section 375 is now to be read as 18 years, which means, if your wife is under 18 then you may not have sexual intercourse with her, whether she consents or not, but as soon as her age is 18 years and 1 Day, from that time, a husband has no legal boundations to have sexual intercourse with her wife, whether she gives her consent or not.

A PARTIAL JUDICIAL DECISION

INDEPENDENT THOUGHT vs. UNION OF INDIA (click to read whole judgment)

In this 2018 Judgment, it was held by the apex court that: " If a husband beats his wife ( under 18 years but above 15 years of age), then he may be charged for the offence of Hurt (section 323), grievous hurt(section 325), assault and criminal force (section 352) of IPC, and he can also be held liable according to Domestic Violence Act,2005.

But, if the husband rapes his wife then he is not liable for any offence, which is an anomalous situation and is also a clear violation of ARTICLE 14 of the Constitution of India, because there is no clear nexus between providing this leverage to the husband regarding committal of sexual offence with his wife and so the age limit of 15 years for a married girl is oppressive and arbitrary and is held to be struck down and to be read in consonance with provisions of POCSO Act, that is, now the age under Exception 2 of Section 375 shall be read as 18 years."

I term this decision as a partial one because of following reasons :

• Rape is an offence for a husband only till his wife is of 18 years, as soon as she turns 1 day more than 18 then it is not an offence.
• Apex court declared Exception 2 as violative of Article 14 by saying that, "if other acts are offences against the girl under 18 years then rape should also be", which is true, but what about the opinion that, "A husband can be held liable for just committing a minor offence of assault (which is punishable only with 3 months of imprisonment) against his wife above 18 years of age, then what is the logic behind that he shall not be held liable for the heinous offence of rape, the punishment of which is 10 years of imprisonment".

RECENT DEVELOPMENT IN THIS CONCEPT 

HRISHIKESH SAHOO V. STATE OF KARNATAKA

It is held that marital rape is an offence and has held the husband guilty of rape on his wife.

RIT FOUNDATION V. UNION OF INDIA

In this diverted views are given by the judges

In favour it is said that, Marital rape not being an offence is violation of Article 14 of the constitution and hence it is to be made an offence.

In other opinion it is held that it is an obligation of wife to fulfil to fulfil the desire of her husband so marital rape cannot be held as  an offence.

MY OPINION

• There are many logics and reasoning given by many persons to validate the term "Marital rape", which I do respect because everyone has their own perspective. But, isn't it strange to say, that, "today is my wife's 18th birthday and from tomorrow I am legally free to have sexual intercourse with her, whether she wants or not".
• If the age of 15 can be raised to 18 with the reasoning of violation of Article 14, then with the same reasoning why can't be raised above 18?
• Why we are on the minority side of the world, where only 36 Nations are left, where "Marital rape " is not an offence, and not at the side of the other 200 nations?

It is a topic on which discussion can never end. That's why, as a reader, I invite you to share your views about it in the comment box.

THANK YOU

Nikhil Tak ( campus law centre, university of Delhi)