The Supreme Court of India, on October 11, read down the exception to Section 375 of the IPC, holding that sex with one’s wife who is below 18 years of age is rape, whether or not the minor consents. Ace entrepreneur Sanjay Dalmia, in the wake of this judgment, has said that the disparity in law would remain until all marital rape is criminalized.
The issue of marital rape is not new to the country. It is the terrifying reality of thousands of women in India, who have no recourse to the criminal justice system when they are raped by their husbands. There is a loophole in the Supreme Court’s recent judgment that can be exploited: a man can rape his wife if she is above 18 years of age! The Exception 2 now reads: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape.”
Earlier, it was criminal only to have sex with a child bride below 15 years old, and men were protected via Exception 2, which allowed sex with their minor wives if they were between 15 and 18 years of age, even if there was no consent. In effect, the IPC legally allowed a man to rape his underage wife if she was between 15 and 18 years old.
“This is logically dissonant and ethically reprehensible.
A social, cultural and legal fiction, marriage cannot be used to bypass basic principles of criminal jurisprudence. Those who are defending the legal dissonance between marriage and rape, are talking about the Protection of Women from Domestic Violence Act (DV Act),” said Sanjay Dalmia.
“Under the DV Act, a woman can file for protection and other relief in the event of sexual abuse at the hands of her husband. The law considers marital rape wrong enough that a woman can obtain a protection order, a residence order or monetary relief, but not wrong enough that he must be tried and punished. Until all marital rape is criminalized, these disparities would continue to exist,” the business mogul added further.
According to Mr Dalmia, rape is a crime and should not be justified in any case. “It doesn’t matter whether one is married or not; wearing a short skirt or a saree; whether she said a feeble no or a resounding one – rape is rape. It is a crime. There can be no justification for it, no excuse, and it is criminal that the Indian government, bound by the Constitution of India, thinks it is completely okay to defend the ‘institution’ of marital rape,” he said.