This Article is written by Kinkini Chaudhuri (currently a student of Amity University, Kolkata pursuing BBA LLB (H) and working as an Associate Editor at legalonus)
CAN A MARITAL RAPE CLAIM STILL BE MADE BY A MINOR WIFE IN A VALID MARRIAGE?
India is one of the countries where women are revered as goddesses, yet it also has the highest rate of child marriage. The Prohibition of Child Marriage Act of 2006 (PCMA) makes it illegal and punishable to marry a female under the age of 18. The Act, on the other hand, legitimises a child born of child marriage but does not address forced sexual actions as a result of such a marriage. This acknowledges the sexual relationship that exists throughout child marriage but ignores the question of marital rape.
Marital rape is when a man engages in non-consensual sexual intercourse with his wife by using force or physical violence. Because the youngster lacks the mental capacity to comprehend the crime, marital rape on minors might be deemed even more wicked. Unfortunately, India’s legal system does not fully recognise marital rape as a crime. India is one of 36 countries that do not consider marital rape to be a crime. Before the marriage was annulled by the courts, there were exception provisions in the Indian Penal Code (IPC) to protect the husband from charges of rape on the minor wife. Because of its social construct and long-held traditions, the institution of marriage encourages child marriage. By abandoning the wife’s liberty at the marital privacy, the husband perceives marriage as a permission to rape without consent.
Legal Provisions Against The Rape Of A Minor: The legal provisions are as follows:
Section 375 of IPC:
The act of committing rape which is defined under Section 375 of the Indian Penal Code (IPC) under six different circumstances of sexual intercourse with a woman. The rape of a judicially separated wife, where the intercourse is non-consensual and the women are living separately, is punishable under Section 376B of the Indian Penal Code, regardless of age.
Sections 3 and 5 of POCSO Act:
The crime of penetrative sexual assault on a child is punishable under Section 3 of the POCSO Act by a heavy sentence ranging from ten years to life in prison, as well as a fine. The offence of aggravated sexual assault is punishable under Section 5 of the Act by a sentence of at least twenty years to life in prison and a fine. The statute makes no mention of the child’s rape in the home.
Section 3 of the Protection of Women from Domestic Violence Act, 2005:
Section 3 criminalises the omission, commission, or conduct of domestic violence when a person is subjected to sexual abuse that humiliates, degrades, or violates the dignity of a woman. However, because of the civil character of the offence, which includes protective orders, judicial separation, and monetary compensation, it does not serve as a deterrence.
RTI Foundation v Union of India:
In the case of RTI Foundation v. Union of India (2008), the Central Government argued that criminalising marital rape would destabilise the institution of marriage, and that removing Exception 2 of Section 375 would be ineffective. The government distinguished between rape committed under “marital relations” and rape defined by the IPC’s “Section 375.” If all sexual actions are considered marital rape, the wife will be solely responsible. Because there can be no enduring evidence in such cases, the evidence to be considered is vital.
Independent Thought v Union of India:
The case of Independent Thought v. Union of India was a watershed moment in Indian history. It put an end to the protracted discussion over the constitutionality of Section 375’s Exception 2 and made it illegal to rape a minor in a marital relationship. The exception was introduced, according to the federal government, to accommodate religious and socio-cultural traditions impacted by marital infidelity. The Court dismissed the claim, believing it was arbitrarily protecting the spouse and legitimising the quiet sexual assault. Because the PMCA Act was secular in nature, it was adopted as a separate Act, the Hindu Marriage Act of 1955, and the Muslim Marriage Act of 1939.
This patchwork of rules regarding child marriage has caused uncertainty, and exemption 2 has harmed minors by enabling sexual exploitation. The justices decided that while the spouse did not commit rape under the IPC, aggravated penetrative sexual assault might be regarded for POCSO purposes. The terms of the rape law were extended include offences of marital rape against children under the age of eighteen. The spouses over the age of 18 were not considered by the court.
An early marriage and consummation of a minor girl under the age of 18 does not guarantee her ability to offer consent. For such conduct, the legislature will impose heavy penalties under the POCSO Act. Marriage can be avoided by requiring couples to register their union. To develop a just and egalitarian society, the institution of marriage must adhere to legal and moral standards.
Prior to the decision of Independent Thoughts, discrimination against minor brides was unjustified and infringed on their fundamental rights. The case’s decision was significant because it raised concerns about sexual and reproductive health consequences and overturned an outdated classification in the rape laws. However, there is a dilemma in the households of such married couples who allow their children to marry. In such serious matters of rape, the social attitude must be addressed in addition to legal support for gender inequity. To restore women’s integrity, families must be educated about women’s perspectives and marital rights of intercourse. Gender empowerment will be achieved through adult literacy programmes as well as sexuality education for youngsters.