What makes rape acceptable?
Going by the recent stance of the Supreme Court, the answer is – an exception clause of Section 375 of the Indian Penal Code (IPC). Thanks to this exception, which aims at protecting the “institution of marriage”, a man can happily continue having sexual intercourse or indulge in a sexual act with his wife, even against her wishes. She only has to be more than 15 years of age. Till 1983, the age of safety for married girls used to be 13 years.
Conundrum of Consent
Unless the individuals engaging in a sexual act are married to each other, the consent of a girl below 18 years is not valid. There have been many cases where young couples have indulged in consensual sexual act and the boy is later charged with rape.
Indian laws dealing with sexual acts, whether with consent or forced, leave us with a Scylla-Charybdis scenario. Consent is the narrow channel of water that flows between the two monsters of rape and customs.
Speaking on the subject, Swaty Malik, a Delhi based lawyer says,
“The whole fight is about the girls between the age of 15 and 18. Child marriage is still a reality for a large part of the Indian society. A girl can’t vote till she is 18, but is deemed mature enough to consent to sexual intercourse in the marriage. How fair is that?”
Sadly, in such marriages, like most arranged marriages, it is the family or even the community that gives consent on the behalf of the girl. Malik retorts,
“But the community gives consent on behalf of under-15 brides too. The law protects those girls, right?”Swaty Malik, Lawyer
In most cases of child marriage, the consummation happens between the 15-18 years age bracket, when the girl is usually sent to live in her marital household. Is it not odd, then, that these very girls are left without any legal recourse? Is there really a rationale behind the lower age of consent within marriage?
Numbers Speak an Uncomfortable Truth
According to Flavia Agnes, senior lawyer at Bombay High Court, there is.
“The rationale is coming from the sheer numbers. About 240 million women in India alive today were married before they turned 18. A cultural problem can not only have legal measures.”Flavia Agnes, Senior Lawyer
In a 2014 report UNICEF had shared that nearly half of all girls in South Asia get married before their 18th birthday. Every fifth girl is married before the age of 15. The report had noted, “These figures confirm that child marriage is rooted in gender norms, and in expectations about the value and roles of girls”.
Agnes elaborates, “These girls are married in good faith. The marriage is solemnised in the presence of family and community elders. A blanket law, without exception, will criminalise all the men marrying these girls. Society will be wrecked. What will happen to the girl if the husband is put in jail after the age of consent is brought to 18?”
Does such an exception not encourage the practice of child marriage? “I have an unpopular viewpoint on the matter. It is easy to clamour for quick fixes like bans and strict laws. What problems like child marriage demand, however, is a sociological approach. In rural areas, girls have to travel a long distance to study after primary school. They are prone to assault, kidnappings and other forms of violence. Parents see marriage as an escape route. Empowerment, not bans, will tackle this menace,” says Agnes.
But how empowered can women hope to feel in a country that does not outlaw sexual violence within marriage? Despite the recommendations of the JS Verma Committee, marital rape was not included as a crime. The latest SC ruling seems to have clinched the matter.
Hierarchy of the Body Parts
Agnes again proffers an unpopular view on the subject.
“Why should an injury to a woman’s vagina be considered more grievous than those on her head?”Flavia Agnes, Senior Lawyer
To deal with the latter, we have sections of the IPC like 498 (A). “Rape in marriage and rape outside cannot be treated at par because in the former, the sexual act is part of the marriage contract. Remember, denial of sex to either partner is considered cruelty. It is the violence, sexual or otherwise, that needs to be dealt with,” she adds.
One may not agree with Agnes’s views, but there is an idea worth pondering over. Why is there a hierarchy in the parts of a female body? The primacy of vaginal injuries due to forced intercourse over those on arms and head owing to beatings is a perpetuation of the patriarchal imagination of the female body.
Malik agrees with Agnes on the subject with some reservations.
“Yes, the existing provisions in Section 498 (A) are sufficient in dealing with any kind of violence within marriage. However, the punishment for violence committed within marriage needs to be at par with that of the offences covered in Section 375.”Swaty Malik, Lawyer
Customs Prevail over Statutes
Malik notes, “In a country where customs prevail over statutes, it is a tightrope walk for legislators and even law enforcers to negotiate the many cultural minefields.” For example, the Hindu Marriage Act which leaves its Section 5 (Condition for a Hindu Marriage), clause III (dealing with age of marriage) ambiguous by not giving the consequence (nullity) for the same.
As per the The Prohibition of Child Marriage Act, 2006, minors forced into child marriages have the option of voiding their marriage within two years after attaining adulthood. Till then, sexual intercourse will have to be tolerated, whether a 15-year-old wife wants it or not.
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