The legal message: 

The legal message: 

Context

• Recent Supreme Court’s decision on criminalising sex between a man and his minor wife, while the court refrained from adjudicating on the larger issue of marital rape
• Removing the current marital exception to rape will also have an important signalling effect

About the recent ruling

• Sexual Intercourse with a girl below 18 years of age is rape, regardless of whether she is married or not.
• The exception carved out in section 375 of the Indian Penal Code creates an artificial distinction between a married girl child and an unmarried girl child.
• The exception clause took away the right of a girl child to bodily integrity and reproductive choice.
• Exception 2 to Section 375 of the IPC now states that sexual intercourse or acts with a man with his own wife, not being under eighteen years of age, is not rape.

Section 375 vs Constitution

• Exception 2 to Section 375 (which defines rape) of the IPC (as amended by the Criminal Law (Amendment) Act, 2013), as violative of Articles 14, 15 and 21 of the Constitution

Article 14 Equality before law

• The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

Article 15  Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

• The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them
• No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition
• Article 21  “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”
• Article 21 can only be claimed when a person is deprived of his “life” or “personal liberty” by the “State” as defined in Article 12.

Article 21 secures two rights:

• Right to life
• Right to personal liberty
• The Article prohibits the deprivation of the above rights except according to a procedure established by law

Verma committee recommendations on marital rape

Justice Verma Committee was constituted to recommend amendments to the Criminal Law so as to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women.  The Committee submitted its report on January 23, 2013.

1. On rape  — The IPC differentiates between rape within marriage and outside marriage.  Under the IPC sexual intercourse without consent is prohibited.  However, an exception to the offence of rape exists in relation to un-consented sexual intercourse by a husband upon a wife.  The Committee recommended that the exception to marital rape should be removed.  Marriage should not be considered as an irrevocable consent to sexual acts.  Therefore, with regard to an inquiry about whether the complainant consented to the sexual activity, the relationship between the victim and the accused should not be relevant.  
2. On sexual assault — The Committee recommended that non-penetrative forms of sexual contact should be regarded as sexual assault.  The offence of sexual assault should be defined so as to include all forms of non-consensual non-penetrative touching of a sexual nature.  The sexual nature of an act should be determined on the basis of the circumstances.  Sexual gratification as a motive for the act should not be prerequisite for proving the offence.  The offence should be punishable with 5 years of imprisonment, or fine, or both. Use of criminal force to disrobe a woman should be punishable with 3 to 7 years of imprisonment.  
3. On Sexual harassment —  Some of the key recommendations made by the Committee on the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 that is pending in Parliament are provided below:

• Domestic workers should be included within the purview of the Bill.
• Under the Bill the complainant and the respondent are first required to attempt conciliation.  This is contrary to the Supreme Court judgment in Vishakha vs. State of Rajasthan which aimed to secure a safe workplace to women.
• The employer should pay compensation to the woman who has suffered sexual harassment.
• The Bill requires the employer to institute an internal complaints committee to which complaints must be filed.  Such an internal committee defeats the purpose of the Bill and instead, there should be an Employment Tribunal to receive and adjudicate all complaints.

4. On Child sexual abuse — The Committee has recommended that the terms ‘harm’ and ‘health’ be defined under the Juvenile Justice Act, 2000 to include mental and physical harm and health, respectively, of the juvenile.
5. Punishment for crimes against women — The Committee rejected the proposal for chemical castration as it fails to treat the social foundations of rape.  It opined that death penalty should not be awarded for the offence of rape as there was considerable evidence that death penalty was not a deterrence to serious crimes.  It recommended life imprisonment for rape.

Causes of high cases of marital rape in India

1. Patriarchal mindset
2. Inequality in society
3. Sexual dissonance between couple
4. Domestic issues
5. Attempt of women to demand her right in marital relationship
6. Economic dependence over husband
7. Absence of legal procedure to recognize marital rape

Conclusion

• UN multi-country study on violence in Asia-Pacific which recommended that strategies must focus on structural factors that prevent the incidence of rape, rather than focussing only on strengthening response mechanisms.
• Therefore, in addition to sensitising law enforcement authorities whose attitudes are merely symptomatic of widely-held beliefs about women and gender roles, we need to work with children, parents and the larger community to ensure marital rape is condemned, not condoned.

Effects of developed and developing countries policies