This week, the Supreme Court and the government of India both agreed to uphold the patriarchal status quo, which makes it perfectly legitimate for Indian men to force their wives, above 18 years of age, into having sex with them — an act that is otherwise commonly condemned as rape.
The apex court's view on consent is already not as progressive as it should be for a matter that goes to the heart of human dignity. By reinstating the constitutionality of Section 377 of the Indian Penal Code (IPC) in 2013, the SC, for instance, had criminalised consensual sexual intercourse between adults of the same sex. Given such a precedence, that it now considers non-consensual sex between adults within marriage par for the course should not come as a big surprise.
But the refusal to admit marital rape as a criminal offence is only one part of the problem that the SC's latest statements have brought on. For, additionally, the bench, comprising two male judges, have also decided that girls between the ages of 15 and 17 cannot claim to be victims of rape if the accused is their husband.
"There are cases when college-going teens, below 18 years of age, engage in sexual activities consensually and get booked under the law. Who is going to suffer? The boy is not at fault. The punishment of seven (for any conviction of rape) years is too harsh," the bench observed.
By making this exception to the existing law, or rather expanding the ambit of legitimate rape, the judges have upheld the supremacy of Section 375 of the IPC, which states that "sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape", though the same counts as rape, "with or without her consent, when she is under sixteen years of age" and unmarried. At the same time, the bench seems to have also diluted several other laws relating to marriage and child rights in India.
Indian law doesn't permit girls below the age of 18 to get married. But that doesn't stop India from having millions of child brides, who either elope to marry or voluntarily marry or are forced into marriage by their families. At this point the bench went on to say that marriage of a girl below 15 years is illegal.
According to a UNICEF report, cited by The Times of India in April, 47% of girls in India are married by the age of 18 and 18% are married by the age of 15. But a high incidence underage marriage does not make it legal, though it may be informally recognised by sections of society as being valid. Then what value does consent hold within such relationships, especially since the Child Marriage Act criminalises such unions?
Further, India's existing rape laws make even consensual relationship between men and women between the ages of 15 and 17 a cognizable offence. How does the SC's view on the legitimacy of any form of sex within marriage within this age group, with or without consent, hold any merit then?
The prosecutor for the NGO, who was arguing to raise the age of consent, also rightly pointed out the anomaly that women between 15 and 17 years of age who are not married and have consensual sex will be deemed raped, as they are considered underage according to the POCSO Act. According to the terms of POCSO, any person below the age of 18 is a child. Therefore, the notion of "consent" does not have a legal standing in their cases.
India, keen to join the global superpowers, is one of the 36 countries in the world — among Iran, Pakistan, Syria and South Sudan — which have no laws to protect women from marital rape. Now, with the SC bench lowering the acceptable marriageable age for girls, there may be fresh confusions in the interpretation and application of laws against child marriage, sexual crimes and those meant to protect women's rights.
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