Indian government okay with marital rape, even if the victim's a child

Talking to Catch, MA Rashid, revising author of Ratan Lal and Dhiraj Lal Indian Penal Code, said, "Exempting married women from the purview of Rape Law is a clear violation of right to life under Article 21 of the Constitution of India, which according to Supreme Court, means right to live with dignity."

Unsure about the "logic behind the exception", he points out that "marriage is not at all an exception or a defence to other offences under Indian Penal Code."

"Article 2 of the Declaration of the Elimination of Violence against Women includes marital rape explicitly in the definition of violence against women. But I am doubtful what the High Court can do in this matter," says Rashid.

Minor rape is okay

What makes matters worse is that the Centre, in its affidavit before the Delhi High Court, has further stressed that marital rape isn't a crime even if the wife is a minor i.e. above 15 years of age. This is in defence of Section 375(2) of the IPC.

The affidavit states that it has been "decided to retain the age of 15 years under exception 2 of section 375 Indian Penal Code so as to give protection to husband and wife against criminalising the sexual activity between them".

"Although the age of consent is 18 years, the social, economic and educational development in the country is still uneven and child marriages are taking place," the ministry explains, adding that the 172^nd law commission report and Justice JS Verma Committee report also arrived at the same conclusion.

"It is recommended by the Verma Committee that the exception to marital rape should be removed and marriage should not be considered as an irrevocable consent to sexual acts. But the recommendation was not accepted by the Government holding that it would dent the institution of arranged marriages and lead to frivolous complaints," says Rashid.

Also read - Maneka Gandhi says criminalisation of marital rape will strain family ties

So our government can go to great lengths to protect a minor's rapist by virtue of them also being a minor, but the law changes for a minor rape victim if she's married? To put this in perspective, not only is child marriage illegal but it is also in violation of the child's complete existence and, in this case, of their safety.

To assume that the married child got into the alliance with consent is one thing, but to reject their only opportunity at getting some redressal for the sake of a clearly flawed "social structure" is criminal in itself.

This is a blatant denial of education, agency, and access to and protection of human rights.

Marital rape vs Section 377

IPC Section 377 - yes, the same law that criminalises same-sex relationships - considers 'unnatural sex' an offence punishable by law. Now 'unnatural sex' translates to any sexual activity that is against the 'natural' process of procreation. Therefore, fellatio, anal sex etc also fall under this category. Even between two consenting cisgendered heterosexual adults.

The Home Ministry's defence of marital rape comes as a reaction to a set of PILs against marital rape. One filed by the NGO RIT foundation, wants it criminalised on the grounds that "Section 375 discriminates against married women sexually assaulted by their own husbands (and) is violative of Articles 14 and 21 of the Constitution".

Another points out the loopholes in rape laws intersecting with Section 377. The PIL claimed that there's an "inconsistency" which protects the husband from being prosecuted even if the offence is 'unnatural sex' as marital rape isn't recognised.

This is terribly ironic as Section 377 is a massive human rights violation in itself. But due to the Centre's complete refusal to acknowledge marital rape, it proves to be a useful recourse for victims of marital rape. This is to say that if the wife is vaginally penetrated without her consent (read: RAPED) she cannot seek any legal assistance, but if she is sodomised by her husband, she should, ideally, be allowed to file a case under Section 377. But can she?

Also read - We can have a law on marital rape, but women are still unlikely to complain: Maneka Gandhi

The petition seeks to make this demarcation clear by stating that our existing laws clash and therefore need to state if the wife can use this law to her benefit. The petitioner, a man facing trial because his wife accused him of forcing her into having unnatural sex with her, is looking to use his marriage certificate as a get-out-of-jail-free card.

His claim? That the "unsettled position of law infringes" upon his "rights". Say nothing of the victim's rights.