Between the debates on child marriage and marital rape, the apex court leaves out completely the concept of consent.

Editor's Note: The Supreme Court on Wednesday ruled that sexual intercourse with wife below 18 years of age will be considered rape. This article, published originally on 11 August, is being republished in the view of this ruling.

A few weeks ago, the Supreme Court issued a revolting directive around domestic violence and cruelty under Section 498A, ordering that such cases be verified and validated by a yet-to-be constituted “family welfare committee” before charges are pressed under the Indian Penal Code (IPC) against the husband and his relatives. Next is a flurry of judgments on the right to termination of pregnancy, especially where the foetus is born out of rape, under the Medical Termination of Pregnancy Act, 1971 (MTPA). These cases are often arbitrary and there is no set pattern on how the judiciary handles each case. The Supreme Court outdid itself earlier this week when it stated that “marital rape cannot be considered a criminal act”.

In the case Independent Thought v. Union of India, the Centre told the Supreme Court bench consisting of Justices Madan Lokur and Deepak Gupta that it stands by Exception 2 of Section 375 of the IPC to provide protection to the husband, his minor wife and the sanctity of their conjugal relationship. Independent Thought, a non-governmental organisation, in a petition in 2013, had challenged Exception 2, which states that sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape. However, there is a discrepancy within the same provision. It states that a man is said to commit rape who has sexual intercourse with a woman with or without her consent, when she is under 18 years of age. Independent Thought’s plea to the judiciary was simple: It urged that all minors be protected from rape under Section 375, irrespective of marital status.

The discrepancy is quite apparent if one thinks about it. By law, India does not permit a woman to be legally married before the age of 18. Moreover, the penal code in India also states that consensual sex with a minor, outside of marriage, is statutory rape. How would this ideally work? A minor girl is protected from rape until she gets married, seems to be the extant position of the law. The lawyer representative of Independent Thought, Gaurav Agrawal, told The Times of India: “We see a girl under 18 years of age as a child in POCSO Act, but once she is married, she is no more a child under the exception 2 to Section 375 of the IPC. This is totally inconsistent. The truth is that a girl under 15 is still a child, married or not. The parliament has to protect the child.”

The writ petition that was filed by Independent Thought in 2013 outlined that Section 375 is heinously violative of Articles 14, 15 and 21 of the Constitution of India, and that consent for any sexual relationship should be increased to eighteen, irrespective of marital status of the girl child. In 2013, the Criminal Law (Amendment) Act, 2013 examined the present circumstances and increased the age of consent for sexual intercourse by girls from 16 to 18 years. Exception 2, however, still contains the age of consent for a married girl as 15 years.

This discrepancy puts girls, who are between the ages of 15 to 18 and are married, in a legal vacuum where they are unprotected by law from intrusive sexual intercourse. Ideally, there is no rational nexus in classifying girls under the age of 18 into two groups — those who are married, and those who are not. Moreover, the Protection of Children from Sexual Offences Act, 2012 (POSCO) states that a girl under the age of 18 years is a child and hence, does not have the capacities — physical, emotional or mental — to take an informed decision about engaging in sexual intercourse. The petition stated: “If this is the object for increasing the age of consent to 18 years in 2013, then marriage of girl at the age of 15/16/17 years does not make the girl mature enough [mentally or physically] for the purpose of consent. Thus, the law is ex-facie discriminatory as the classification has no rational nexus with the object.”

The Centre, however, defended its position, stating that it prefers to fall back on tradition when it comes to these things — especially because the case concerns sexual/conjugal relationships in the context of marriage. Binu Tamta, the lawyer representing the Centre, cited the laws around marriage and stated that wedlock between children are voidable, and that child marriage is a reality in India because of poor socioeconomic conditions. Tamta also stated that protecting the institution of marriage was a priority.

What a disturbing notion that a human rights violation such as child marriage must be accommodated because of poverty!

In fact, in the past few years, several politicians have said many disturbing things about the concept of marital rape. The Union Minister of Women and Child Development, Maneka Gandhi, has stated that marital rape “cannot be applied to the Indian context". Another Member of Parliament from Gujarat, Haribhai Parthibhai Chaudhary, has said, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament."

The Supreme Court bench, in the present case, refused to look at marital rape as an issue that can debated and considered as a criminal act under the IPC. “Parliament has extensively debated the issue of marital rape and considered that it was not an offence of rape. Therefore, it cannot be considered as a criminal offence.” In fact, the bench seemed to have clammed up and passed the buck to the Parliament.

What is even more disturbing is that the apex court seems unfazed by the issue. The fact that the country’s penal code has a dangerous, almost draconian discrepancy that goes against the Constitution as well as international conventions such as the United Nations Convention on the Rights of the Child (UNCRC) does not seem to bother the judiciary at all. Moreover, the judiciary is increasingly taking on the role of protector of the institution of marriage, instead of examining issues in the context of the Constitution — more and more human rights are being thwarted upon on the pretext of traditions and cultural relativism.

Lastly, between the debates on child marriage and marital rape, the apex court leaves out completely the concept of consent, which was, in fact, the agenda of the petition by Independent Thought. It does not once stop to consider the vagaries of consent — informed or exacted — by a young girl who has been married off, say at 16, and by virtue of the institution, has been displaced from the protection of the State, and is more vulnerable to violence.

For years together, the Indian judiciary made sound decisions and now suddenly, the courts are weighing women’s bodies, agency, autonomy and consent against the institution of marriage at the cost of their rights.