Rape Laws for Married Children: Irony of Laws

India has a history of Honouring Barbaric and Inhuman Traditions in line of their pertinacious beliefs. In order to offload their responsibilities, parents are marrying their daughters at a young age. But what they fail to acknowledge is that the young brides face the risk of sexual and ill health problems since they are exposed to early sexual activity. Sexual Assault within marriages is arguably the most mystified of abuses against women. According to Child marriage act, 1929 after being revamped and called as Prohibition of Child Marriage Act (PCMA), 2005 prescribes the minimum age for a girl to get married is 18 years[i]. Not just PCMA but also Criminal Amendment Law (Act) 2013 in The Indian Penal Code, explains that the age at which a girl can consent to have sexual intercourse is 16 years. If one goes on and read the explanation to this part it would mean if a person enters into sexual intercourse with a girl who is below 16[ii] , with or without her consent it would amount to rape. Understanding this explanation would help us later in identifying the paradox in Indian Legal System. Further if we delve on reading the most recent enactment for Prevention of Children from Sexual Offences Act (POSCO), 2012, nowhere in the act the concept of marital rape has been included. It’s only in the definition section 2(d)[iii] that defines the definition of what a ‘child’ means for that act.

When we bring our attention on section 375[iv] of Indian Penal code which defines rape, wherein Exception (2) of section 375 carves out an immunity which has been given to Indian husband. It states and I quote “Sexual Intercourse or sexual acts by a man with his own wife , the wife not being under fifteen years of age, is not rape”.  In simpler terms, this would mean a man can have sexual intercourse with his child wife, the wife being above 15 years of age, with or without her consent and this will not amount to rape. Alongside, if we focus on section 376[v] of Indian Penal Code, 1860 which provides punishment for rape, one would observe that the rapist ought to be punished for term which shall be not less than 7 years of imprisonment which may extend to life or for a term of 10 years except in cases except the cases when the women is wife of the husband. In clause (1) of this section, punishment prescribed is “imprisonment of either description for a term which may extend to two years or fine or both”, if the girl raped is his wife and is under twelve years of age. In laymen terms, a girl with whom such sexual acts are done has to be above 16 to give consent if she is unmarried, but if the girl is married then her husband can have sexual acts with or without her consent when she is just above 15. In the bracket of 12 years to 15 years of age if a husband does a sexual act with her wife then he will be given a mild punishment of 2 years of Imprisonment.

In the light of the above provisions, now we look at the conflicting laws and paradoxes which emerge in these laws. First of all we have to notice that not even one statue in our country has declared child marriage void ab initio. Whether it is Hindu Marriage Act, 1955 or Prevention of Chid Marriage Act, 2006, all of them provide that marriage is voidable at the option of the party. The first reason that makes child wife prone to early sexual activity is child marriage. Biggest paradox which one can observe is if a girl is unmarried, then sexual acts with her will not amount to rape only when she can give a valid consent after she is 16 years old. Reason which has been advocated behind this is that the girls below 16 have not developed enough mental faculties to know consequences of their consent. Hence below 16 with or without consent, if a girl is unmarried it will amount to rape. But on the contrary if a girl is married and is aged between 15 to 18, then her husband can have sexual acts with her and that would not amount to rape. Hence, merely by the fact that she becomes married, Indian legislators turn a blind eye to their own concept of mental faculties. Isn’t this hypocrisy, do you really believe a girl to posses that mental faculty merely by the fact that she is married. The question arises that “why these sexual acts don’t amounts to rape”. Moreover if one observes, lesser punishment is awarded to husbands for raping her child wife when she is between 12 to 15 years of age. If that Rape is included within the definition of rape, then why should one be given lesser punishment for it. This sexual act has to treated at par with other punishment of rape. This seems like giving immunity to a husband that you can rape her when she is above 15 years and with a less punishment when she is between 15 to 12. In the P.I.L. filed by Independent Thought an NGO for Chld Rights[vi], it has been specifically pointed out as to How article 14 is being violated for girls who are married against whom those are not married. Further, a contradiction is observed when  Prevention of Child from Sexual Offences Act, 2012 protect children between 15 to 18 years of age but an exception to 375 gives immunity to the husbands. One of the major problems that we are facing while addressing this issue is having no proper definition of a 'child'.  Every statue provides their definition with a different mention of age, as a result the core definition is getting obscured.

In order to address the problem of marital rape within child marriages, we need to focus on these crux issues. If we do not address these problems soon enough we would be observing declining health of children especially girls who are married at an early stage.  In spite of several law commissions report whether it is 42nd, or 175th or 205th, we haven’t been able to address this problem yet. The first step which we need to take in this direction involves striking down of exception (2) to 375. Further we need to introduce measures to stop marital rape, which may involve coming up with the method where more of marital rapes are being reported. There is no dispute to the fact there would be many challenges in criminalizing marital rape, but steps have to be taken prudently. Further, we need to have a clear cut definition of child; we need to avoid varied definitions according to different legislations. As a last resort, education is obviously one the imperative tools in reforming society. We have to educate masses and make them aware about the consequences of early child marriage and sexual acts at an early age. If we can achieve this, then we can look forward to lesser marital rapes, fewer child abuses and healthier citizens.

[i] Section 2(a), Prevention of Child Marriage Act, 2006
[ii] Section 375, (Sixthly), The Indian Penal Code, 1860.
[iii] Section 2(d), The Prevention of Children from Sexual Offences Act,2012
[iv] Section 375, Exception (2),The  Indian Penal Code, 1860
[v] Section 376 (1), The Indian Penal Code, 1860
[vi] Independent Thought vs. Union of India,  W.P.(C) 8763 of 2015 


on 18 September 2017
Published in Criminal Law
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