This article has been written by Torsha Sarkar. Torsha is a third-year law student in National Law University Odisha.

The Criminal Amendment Act of 2013 was deemed progressive for its broadened ambit of definition of rape and for making unwanted, lecherous, sexual behaviour of men (including voyeurism and stalking) an offence. However, despite all this, the Act still failed to impress the legal sphere on a) its stance upon marital rape, and b) the absurdity in affixing the age of child sexual assault. The Act missed a crucial chance to be a progressive society where conjugal relations in a marriage are not put in such a ‘holier-than-thou’ pedestal. The fact that the lawmakers, even in this age fail to understand (or refuse to) the fact that husbands can indeed rape wives is baffling. This debate regarding the regressive mentality of the lawmakers would occupy an entire debating space and should be left for another discussion. The focus of this article is mainly on the second point (though it is somewhat related to the first point), that the age affixed by the Act by which we are to determine what is and what is not child sexual assault is absurd, to say the least.

The case of State of Punjab v Major Singh[1], is heralded as a landmark case in this regard, where the Supreme Court held that the offence of ‘outraging the modesty of a woman’, given in section 354 of the Indian Penal Code, is also applicable to a seven and half months old baby[2]. After this, in the 42^nd Law Commission report recommended that the Courts should not have to fall back on the restricted definitions embodied in the Code, and suggested a new section 354A which would deal with indecent assault on children[3]. However, this section did not see the light of the day, and even the new Act of 2013 did not incorporate it in its provision. So, there is no provision especially which deal with child sexual abuse. Nevertheless, the sixth clause of section 375 defines statutory rape, whereby any sexual activity with any woman below the age of eighteen years of age would be rape. Till here, all is good.

The problem comes when one reads the exception 2 of section 375, whereby sexual intercourse by a husband with his wife, if his wife is above the age of fifteen, would not be rape. Here is where all the absurdities and insensitivities of the lawmakers of this country start rolling in. So, by the language of the Code, the law makes a classification between women in the age group of fifteen to eighteen, on the basis of their marital status. The question then is, if this classification valid? The case of Budhan Choudhry v. State of Bihar[4] should pose an answer to this. A classification would be deemed to be reasonable if a) that the classification is found on an intelligible differentia, and b) that there is a reasonable nexus between the object sought to be achieved and the classification[5]. Let’s look at the classification made by the Code based on these guidelines.

What is the intelligble differentia on which married and unmarried girls of the age group of fifteen-eighteen? Can marriage be an intelligble differentia while determining whether there has been rape or not? Is marriage an exempting force for child sexual abuse? The author begs to differ. The International Center for Women, along with United Nations Population Fund had conducted a study on intimate partner violence, and they had found that out of the sample size (which mostly featured married couples in eight states of India), one-third of the men admitted to having forced themselves at least once on their partner[6].

Further, what is the object sought by such classification? Clearly, the sixth clause of section 375 is intended to stop child sexual abuse, making even an intercourse with a consenting minor an offence. What is the object of enacting the exception then? The author, in a moment of sentiment, can say that this exception just puts the husband in a higher-up podium, where he has every right over the wife’s body, even if the wife is a minor by the Code’s own word, and anything he does or forces upon his minor wife, he can get away with it. This is the law’s intention then.

So, where does that leave us? Further, the POCSO makes any sexual activity with any person under the age of eighteen years of age an offence. So, say in a case a child wife alleges rape by this law, and the defence brings in the exception under the IPC. Which prevails? The lawmakers should wake up and look at the deplorable and embarassing state of the laws then. Throw in this confused, insensitive mix the fact that there is nothing in the Code regarding the sexual assault of male children, as the Law Commission report, joyously had mentioned back in 1971 that rape of minor boys by mature women does not constitute such a big moral wrong as to make an offence. The author can only marvel at the extent of regressiveness and the arrogance of the lawmakers that they continue to revel in their patriarchal notions, also enjoying the immense respect that their position brings them.

[1]              State of Punjab v. Major Singh, [1966] SCR 2 286

[2]              id

[3]              Indian Penal Code, Forty Second Report, Law Commission of India [1971]

[4]              Budhan Choudhry v. State of Bihar [1955] SCR 1 1045

[5]              id

[6]              http://www.thehindu.com/data/statistics-on-marital-rape/article6586829.ece

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