Govt defends IPC provision that protects marital rape

Satya Prakash

Tribune News Service

New Delhi, August 9

The NDA government on Wednesday sought to defend a provision of criminal law that said sexual intercourse by a man with his wife aged 15 years or above was not rape even if it was without her consent.

During hearing of a PIL challenging Exception 2 to Section 375 of the Indian Penal Code, Centre’s counsel Binu Tamta said doing away with the provision might have an adverse impact on the institution of marriage in India.

The PIL filed by Independent Thought, an NGO, in 2013 urged the top court to declare Exception 2 to Section 375 of IPC unconstitutional, contending it violated Articles 14 (right to equality), 15 (right to non-discrimination) and 21 (right to live with human dignity) of the Constitution. The exception permitted intrusive sexual intercourse with a girl child aged between 15 and 18 years only on the ground that she has been married, the petitioner pointed out.

It requested the top court to declare that the age of consent for sexual relationship should be treated as 18 years, irrespective of the marital status of the girl child.

A Bench headed by Justice Madan B Lokur asked the Centre to furnish within three weeks data on prosecution of parents and guardians under the Prevention of Child Marriage Act after it was informed that there were 23 million child brides in India. It also asked the government to submit details regarding appointment of Protection Officers under the Act.

The Bench asked petitioner’s counsel Gaurav Agrawal to provide material on the adverse impact child marriage has on girls. Section 375 of IPC defines rape as sexual intercourse without consent and against the will of a woman. An amendment to the rape law in 2013 said any kind of penetration of a male organ or any object into any body part of a woman would be treated as rape.

But according to Exception 2 to Section 375 of IPC, sexual intercourse by a man with his wife, who is 15 or above, is not rape even if it is without her consent. Women’s rights activists want marital rape to be made a criminal offence on the ground that it forces women to suffer the worst form of sexual violence silently within their matrimonial homes.

In February 2015, the top court had refused to entertain an MNC executive’s plea to declare marital rape a criminal offence, saying it wasn’t possible to order a change in the law for one person. It was for the legislature to take a call on it, the top court had said.

Maintaining that the general age of consent was 18 years for girls, the petitioner pointed out that the Prohibition of Child Marriage Act, 2006 makes it an offence to solemnise the marriage of a girl below 18 years, though the marriage itself was voidable at the instance of the child and not void.

There was a disparity in the age of consent under the law i.e. the age of consent is 18 years for a girl who is not married, while the age of consent is 15 years for a girl who is married, the petitioner submitted.

The law should not encourage sexual relationship with a girl child less than 18 years under any circumstance and simply because the girl is married, she cannot be subjected to such a violation, it contended.