Recently Supreme Court has held in the case of Independent Thought v. Union of India that sexual intercourse with wife under eighteen years of age will amount to rape. According to the observation made by the Apex Court in this case, Exception 2 to Section 375 of the Indian Penal Code, 1860 to be meaningfully read as “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years (instead of fifteen years as provided under Indian Penal Code, 1860) of age, is not rape”. Supreme Court has given various reasons like contravention of obligations imposed on India when it became signatory to international convention like Convention on the Rights of the Child (CRC), Convention for the Elimination of all forms of Discrimination against Women (CEDAW). Another reason Court has given was that it violates Article 14 and Article 21 of the Constitution. Court also said that, it is inconsistent with other laws like Protection of Child from Sexual Violence Act which provides that age of consent is eighteen. Court also highlighted the problems of child marriage from rights perspective and said that the “key concerns are denial of childhood and adolescence, curtailment of personal freedom, deprivation of opportunities to develop a full sense of selfhood and denial of psychosocial and emotional well-being reproductive health and educational opportunity along with consequences described earlier.”
The judgment was appreciated nation-wide for recognizing rights of child-bride however it left many questions unanswered. It is difficult to understand that if non-consensual sex violates the right of a wife under age of eighteen years, how come it does-not violate rights of adult married women. If we look into provision, Explanation 2 to Section 375 of Indian Penal Code reads as follows- “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”. Earlier one NGO named Sakshi has asked for deletion of this provision to which Law Commission answered that it “may amount to excessive interference with the marital relationship”. If we look into History when IPC was enacted, age provided under above provision was ten years. Now after this judgment it is eighteen years. By virtue of this this marital rape exemption, husband can have non-consensual sexual intercourse with wife above eighteen years, without being penalized under the IPC, only because she is married to him. The right of an adult woman to her bodily integrity and to decline to have sexual intercourse with her husband has been statutorily denied.
The petitioner in this recent case society working in the area of child rights and that is why court has dealt with rights of child-bride only. The issue of adult-bride has not been raised before this Court. Petitioner has argued that the minimum age of marriage is 18 years in the case of females and the relevant clause of Section 375 should reflect this changed attitude. Since marriage with a girl below 18 years is prohibited (though it is not void as a matter of personal law), sexual intercourse withher should also be prohibited. Court has accepted this and it was noted that non-consensual sexual intercourse by a husband with a child-bride “would amount to a violation of her human right to liberty or dignity embodied in international conventions accepted by India such as the Convention of the Rights of the Child and the Convention on the Elimination of all forms of Discrimination against Women”. Article 16(g) of the CEDAWalso obligates state parties “to ensure that women do not suffer discrimination within marriage, especially in the exercise of personal rights”.
The right to consent to sexual intercourse is inherent to a person’s bodily integrity and sexual autonomy and state should make laws for its protection. Now it is a matter of dispute that how these reasoning would not apply to an adult married women. The consent of child-bride does not matter because law has presumed that she is unable to give consent, now it is very ironical that it disregards her consent even when she is adult and capable of consent. Right to refusal to sexual intercourse cannot be denied just because she is married. It is very absurd at this point of time that IPC is destroying the right of a woman to her body, and at the same time it is also supporting the backward idea of treating a women subordinate to her husband and as his property. This exception is in conflict with other provision for example consent under this statute means“unequivocal voluntary agreement, or a communication that conveys willingness, to participate in a specific sexual act”, so there is no rational in presuming that consent to marriage implies consent to sexual intercourse.
This exceptional provision under IPC which allows a husband to have full control over the body of her adult wife and can have sexual intercourse even without her consent, is very inconsistent with other statutes as well. It is unconstitutional as well for men and women both are equal constitutionally under Article 14. A woman has fundamental right to life and liberty which includes rights over one’s own body and disregard to her consent to sexual intercourse amounts to violation of this right guaranteed under Article 21 of the Constitution. This provision is derogatory to the status of a woman in our society. Protection of Women from Domestic Violence Act defines domestic abuse which includes “causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse” and definition of sexual abuse includes “any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman”. Therefore sexual intercourse with wife without her consent immaterial of her age will fall under above category of domestic abuse.
While deciding the constitutionality of this exception in case of minor-wife, court has based its reasons on grounds which are applicable to adult-wife as well. Another issue with this provision is that it is implicitly provides for child marriage which is like a menace to society for obstructing the intellectual development of girl-bride and also lowers her participation in society. Getting back to legality of forced intercourse with adult-wife, apart from violating her basic human rights including right to live with dignity, forced sexual acts also lead to many problems like unwanted pregnancy, loss of reproductive choice, or the destruction of confidence and self-esteem irrespective of her age. Considering all this, this provision needs to be removed from IPC.
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