Don't lambast Supreme Court for flawed legal position on rape within child marriage, elect better politicians

By Sharanya Gopinathan

It's obviously a weird thing to be celebrating in 2017, but we had every reason to rejoice on 11 October when the Supreme Court declared that sex with a minor wife is rape, in the case of Independent Thought vs Union of India.

The SC struck down the exception to Section 375 of the Indian Penal Code that said “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” (This was fought ferociously by the BJP’s LK Advani in Parliament, so you know who to thank. Or not).

The judgment may have closed one legal loophole, but it threw up other doubts. For example, the SC said that rape cases can be filed against men who have sex with wives between 15 and 18 years of age, but only if they approach court within a year of the offence. The real implications are confusing, but the devil’s in the details: What happens if you miss the deadline, what about minor boys married to minor girls? And isn’t the POCSO Act (the umbrella Act protecting children from various sexual offences) enough? So we tried to find some answers.

Dont lambast Supreme Court for flawed legal position on rape within child marriage, elect better politicians

Representational image. Reuters

What’s with the one year deadline?

Until 11 October, it was legal to have sex with a wife between 15 and 18 years of age, while sex with a wife below 15 years was considered rape. The SC struck down the arbitrary age distinction, and ruled that the age of consent (for sex) for women is always 18, with no exceptions. And that the statutory age for rape is 18, which means sex with any girl under 18 is rape.

Weirdly, the judgment also specifies that sex with a wife below 18 would be considered rape if the court was approached within one year of the offence being committed.

Why one year? There’s probably a banal explanation. When making this rule, the apex court referred to an existing section of the CrPC that deals with punishment for men who have sex with wives below the age of 15. Section 198(6), which reads, “No Court shall take cognizance of an offence under section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual intercourse by a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence [emphasis mine]”.

That’s why there’s a limit on reporting the newly-recognised crime of sex with a wife between the ages of 15 and 18 years: simply because a similar time limit was in place for the existing crime of sex with a wife below 15. The new judgment changes this particular section of CrPC so that it now reads “wife being under 18 years of age” instead of 15, but it didn’t engage with the meaning of the one-year time limit on reporting at all. This case dealt only with consent.

Jayna Kothari, co-founder of the Centre for Law and Policy Research and a lawyer working on this case representing the NGO Independent Thought, doesn’t seem worried about the implications. “The provision states that the court must be approached within one year of the commission of the offence, not the marriage,” she says, “So, of course, in a marriage where sexual intercourse is presumably ongoing, the girl can plausibly approach the court at any point and claim that sexual intercourse has happened within the last year.”

The SC didn’t critique the fairness of this deadline when applying it to all minors, not just those below 15, because that isn’t its job — the judiciary merely interprets the meaning of the law and applies it.

Wasn’t POCSO enough?

Many of our laws addressing sexual violence are phrased such that these crimes can only be perpetrated upon women. Section 375 of the IPC is a great example: It’s worded in a way that only protects women, and this takes on added significance when dealing with underage sex and marriage.

Most issues pertaining to sexual offences and children are covered under POCSO. Under the POCSO Act, any minor (boy or girl below 18) can seek relief from a special POCSO court and file cases of penetrative sexual assault (includes oral sex and penetration with objects) if they had sex with anyone, consensual or otherwise, whilst below 18. This option continues to be open to minor boys and girls.

Until this judgment though, that’s all girls could do. Minor girls wouldn’t have been able to file an FIR for rape under Section 375 of the IPC against their husbands, because the IPC contained an exception to rape in marriage. This judgment removes that exception — and holds that being married to a minor is no longer a legal excuse to rape her.

So, this judgment gives minor girls a wider variety of legal options to turn to in rape cases, besides the POCSO Act.

But what happens to minor boys married to minor girls now?

Before looking at what this judgment changes, let’s remember what the situation was before. Until this judgment, it was legal for a minor boy to have sex with his 15-year-old wife, but illegal for a minor boy to have sex with his 15-year-old girlfriend.

Kothari sees no value in such a legal distinction that simply privileges marriage in rape cases. “This judgment removes the 'husband protection'. If you look at the numbers, you’ll see that in the majority of these cases, the girl is a minor, not the boy. (When involved in relationships with minor girls), a lot of people would just go ahead and get married, because the IPC gave protection to such a marriage, and they would be looked upon more favourably in POCSO courts too.”

So because of this judgement, if a minor wife files a rape case against her minor husband, he will be tried for rape, but under the provisions of the Juvenile Justice Act and not as an adult. This is quite significant and opens up the worrying possibility of teenage boys, who have, say, been forced into marriage, or who eloped with their teenaged lovers, being tried for rape.

Okay, what does it all mean?

When you look at the facts, you realise that this judgment only removes the single legal protection accorded to people who rape children: marriage. When you look at it this way, it feels fair and like the practice of good law; the SC only ruled that we cannot privilege the institution of marriage over the protection of girls from rape.

Ashruta Rai, a Delhi-based lawyer, points out that this judgment has great symbolic value. “Criminal laws don’t just tell you what will happen if you do something wrong, but they’re also a reflection of what that society deems acceptable. The country’s primary criminal statute, the IPC, really shouldn’t say that the rape of children within marriage is okay.”

The tangential problems arising from this case, such as the one-year reporting limit and the effect it may have on minor boys, are not consequences of this judgement, but reflections of problems in our already existing body of law. And the courts, as often as we turn to them with hope and faith, can only do so much.

Even now, it’s not as if the law automatically dissolves child marriages. No, under the Prohibition of Child Marriage Act, the only child marriages that are considered automatically null and void are those involving kidnapping or trafficking. Even in the case of child rape within marriage after this judgment, the court still needs to be approached in order to take up the matter. But how much agency does a 15-year-old bride have, and can we really rely on her parents — who probably authorised the marriage in the first place and who would be penalised if it came to light — to report marital rape?

This is why we need to first change the law. But making huge changes is the legislature’s job, and it’s about time we remembered that. Instead of lambasting the judiciary for being slow to reaffirm that we have a right to privacy or that sex with a minor wife is rape, or for not automatically dissolving child marriages, we should resolve to vote better: For a women and child development minister who doesn't flip-flop on her stance on marital rape, a culture minister who doesn’t think “night outs” for girls are against Indian culture, or a prime minister who sees consequences of female foeticide beyond the plight of unmarried boys.

The Ladies Finger (TLF) is a leading online women's magazine delivering fresh and witty perspectives on politics, culture, health, sex, work and everything in between.

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Updated Date: Oct 22, 2017 15:01:38 IST

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