By Shruti Sunderraman
Rejection. Rejection. Rejection. Is how the Supreme Court seems to be playing this (not) game of declaring martial rape as illegal in India. In 2015, the apex court had rejected a Delhi woman’s plea to criminalise marital rape citing it to be an “individual issue.. not a public issue”. And now, according to a report, the SC has declared that marital rape cannot be considered a criminal offence, if sexual intercourse is between a man and his wife, above the age of 15.
Section 375 of the IPC (which defines rape), has an exception to the clause for rape, saying physical relations between a man and his wife (given that she’s above 15 years of age) are not criminal. But here’s the more disturbing part of this ruling. It does not criminalise marital rape even if subjected to women between 15 to 17 years of age, well below the legal age of marriage. So, basically, even with two laws contradicting each other, the SC chooses to uphold the hypocrisy of marital rape.
A bench comprising justices MB Lokur and Deepak Gupta was hearing a plea by the NGO Independent Thought, questioning the constitutionality of a man having intercourse with his wife even if she’s between 15 to 17 years old. The bench, however, says, “Parliament has extensively debated the issue of marital rape and considered that it was not an offence of rape. Therefore, it cannot be considered as a criminal offence.”
This non-uniformity in defining a child completely contradicts the Child Marriage Prohibition Officers (Child Marriage Act) and Protection of Children from Sexual Offences Act (POCSO). The former prohibits marriage of a girl who hasn’t attained majority (18 years) while the latter decrees that a physical relationship with a minor constitutes rape.
The SC also observed that the parliament’s decision to uphold Section 375 (2) of the IPC (the exception to marital rape) reflects badly on the government (nodding vigorously).
So, here are the contradictions floating our way in this infuriating decision: On one hand, the SC says a man’s physical relations with a wife above 15 years of age is okay. Ok. On the other hand, the Child Marriage Act prohibits a girl below 18 years of age from getting married in the first place. So what is the SC and the government protecting here? Neither is a wife above 18 years of age being protected from sexual assault by her husband nor is a child (between 15 to 18 years) being protected by the law. We’re so done with the government using loopholes in laws to defend upholding “culture”.