PREJUDICE AND PATRIARCHY IN RAPE CASES

Reading time : 8 minutes

Ever since we grew up patriarchy has existed from time immemorial and despite all our lectures on equality of men and women it has remained in people’s minds and will remain till infinity. Because there is no way out of these views on patriarchy people still are reading the same books talking about the same topics.

For instance, in the current order, at the same time as granting a rape accused anticipatory bail, the Karnataka High Court said, “It is unbecoming of an Indian girl to sleep after she is ravished.” Giving motives for the bail order, the court mentioned that the complainant’s claim of having slept “after the perpetration of the act” due to the fact she was worn-out changed into “unbecoming of an Indian girl”. This cause for granting bail was inter alia accompanied through different elements viz, put off in submitting a complaint by the prosecutrix and her earlier acquaintance with the accused. However, the statement made through Justice Krishna Dixit, about the behavior of the “Indian girl” post-rape, reaffirms the lifestyles of deep-rooted sexism and patriarchal notions, even in the maximum constitutional institutions.

These patterns of conservative interpretations can be seen in one of the judgments were to establish the guilt of the victim the judiciary focused on the principle like “utmost resistance” by the women to establish her allegations against the accused. This principle of utmost resistance was so fragile and lame that it could easily be established like the accused might have known the victim or the victim might have trusted the accused or she might have been coerced or something like that. There are also instances where judges gave “victim-friendly” decisions and ended up giving their views on sexism and patriarchal norms.

The very first concern is that do we live in a rape culture? It is hard to believe but all men talk about getting some of it? As if they see women as sexual objects to have fun and pleasure themselves. They openly talk about strategies they did to get some of it no matter about the consent of women or how much they ignored.

 This doesn’t suggest that all men are rapists, that everyone heterosexual intercourse is rape, or that egalitarian relationships among women and men are impossible. It does suggest, however, that rape is set energy and intercourse, about the manner men are skilled to apprehend ourselves and to look, women.

Let me repeat: The majority of fellows do not rape. But recollect those different categories:

  • Men who do not rape however could be inclined to rape if they had been positive they might not be punished.
  •  Men who do not rape however will not interfere while any other guy rapes.
  •  Men who do not rape however purchase intercourse with ladies who’ve been, or probably will be, raped in the context of being prostituted.
  •  Men who do not rape however will watch movies of ladies in conditions that depict rape or rape-like acts.
  •  Men who do not rape however discover the concept of rape sexually arousing.
  • Men who do not rape however whose sexual arousal relies upon feeling dominant and having energy over a woman.
  •  Men who do not rape however robotically masturbate to pornography wherein ladies are offered as objectified bodies who’s primary, or only, feature is to offer sexual pride for men.

Those men aren’t rapists. But is that fact — that the men in those classes aren’t, in legal terms, responsible for rape — comforting? Are we advancing the reason of ending men’s violence in opposition to women through focusing simplest on the acts legally described as rape?

Do we live in a rape culture? Where raping someone is so normalized that the rapist doesn’t even think before doing this heinous crime and on being held responsible, they slut-shame or blame the victim and refuse to accept their doing.

Shame is an effective phrase due to the fact its miles related to something as natural and as forthright because of the conscience. Nowadays, disgrace appears to be a small and insignificant phrase in the wake of the ghastly acts of savagery being devoted against women. Are the guys who brutally assaulted and raped the young girl physiotherapy scholar in Delhi feeling ashamed of what they’ve done? Or the most effective poor feeling that they have got toward themselves pertain to the remorse of being caught?

Let me simplify the question to you: do all men who whistle, even tease, stalk really feel guilty about what they have done. The answer is a straight NO.

The curtain of shame is only for women majority of them are only regarded as shameless because the dignity of their home is only attached to the female group, not the male group disgrace, which has been used in opposition to girls as a double-edged sword. They are effortlessly tag-marked as shameless transgressors for acts like marrying without the consent of the family, searching for a divorce, inquiring for a proportion in ancestral assets, or refusing to tie hair, face, or body.

In a recent judgment, the court was of the view that the girl who was sexually assaulted stayed late at the office, wore short clothes which gave hint to the perpetrator to assault her. The explanation given by the accused said that she always kept a hand on his shoulder while talking to him and was super friendly with him these were the hints given by the victim which the accused understood for sex. He ravished her in front of the court and said to be of “loose morals and character” he said that the victim was of easy virtue and slut-shamed him.

 This is what Indian patriarchal society thinks of a woman as just a sex toy. If a woman is a little bit friendly with a male colleague she will be easily tagged as “characterless”.

Normalization of rapes in lower caste and tribal people

Indian society is dominated by men. Lower-caste Dalit girls in northern India are centered for rape by higher-caste men who generally get away justice as survivors bow to pressure to drop their cases, researchers find. Only 10 percent of forty rape cases concerning Dalit girls and women in Haryana state ended with the conviction of all the ones charged, and that concerned homicide or sufferers under the age of six, observed rights groups, Equality Now and the Swabhiman Society.

In almost 60 percent of cases, victims were forced to withdraw their complaint by higher-caste men they were dragged outside of the court to withdraw their cases and were blackmailed if they didn’t take the complaint back their daughters and women of the house will be re-raped this time with the greater intensity.

Their families were coerced, faced violence, were extremely pressured to stay silent. To access justice families, have to go at huge risk. “Dalit women’s bodies are becoming used to assert caste supremacy and keep women ‘of their place’,” “Perpetrators from dominant castes understand they are possible to head unpunished because of the truth every branch and echelon of the tool is weighted in their favour, and this impunity for rape creates allowing surroundings that foster similar abuse.” In almost 90 percentage of cases, at the least one of the accused was from a dominant caste, with guys regularly performing in groups to carry out gang-rape and murder, the research found.

To build on more seriousness to this matter normalization of rape in lower or tribal people didn’t start just now it is being practiced for centuries like “mulakaram” or breast tax give by lower caste women they were not allowed to cover their breast in public and just in case they acted against this barbaric tax collecting technique lower caste women were forced to give a hefty sum of money to the tax collector. After attaining puberty every lower caste woman’s breast size was measured and according to the size of their breast the amount of tax was decided. This is such a barbaric and heinous crime to do with a woman taking someone’s dignity and ravishing her body in front of men. These women were often raped by upper caste men actually to some up this incident this tax was only levied to extinguish men’s thirst to see women naked and rape them.

Sexual harassment at the workplace

Is the most reported crime nowadays as now women stand equal to men and work with or upper to them this creates a sense of egoist behavior in them and in return, they sexually harass women. Studies show that 1 out of 2 women is touched by sexual harassment in the workplace.

Every working woman lacks a sense of security in their workplace. In 2018-’19, the National Commission for Women received 880 complaintsof sexual harassment at the workplace. Women are not safe in this environment too, we say people with degrees are decent people because education changes the way to think, the way to act upon certain things but this saying is wrong because if this happens at the workplace too, then there is absolutely no use of being called “educated man”.

The main judgment given on sexual harassment at the workplace is Vishakha & Ors v. State of Rajasthan & Ors[1]. In this Supreme Court has laid down exhaustive guidelines to prevent sexual harassment of working women in places of their work until legislation is enacted for this purpose. But the proper implementations of this guideline are the utmost priority because several laws are made, guidelines are issued but they aren’t properly implemented.

Male dominance is at par when the male employer asks for sexual favors from female employees in order to get them promoted. They coerce them, practice undue influence on them to get what they want. These all activities are happening at a greater level than reported because many cases are not reported they remain hidden from the world because complaining about these matters hampers only the image of a female employee. She is the only one who suffers the most in this battle.

Marital rape is no rape

India is among 36 countries where this heinous crime is legal. Does this rape is not “The Rape” defines in the Indian penal code? Does this rape do not disgust the women? Marital rape is also non-consensual in nature this is also performed without the consent of wives then why until now is it not this considered a crime. Why this is called licensed rape? Husbands get a proper license to rape his wife countless times without any fear of getting punished and questioned. About 70 percent of women in India are a victim of domestic violence. According to the reports presented by National Crime Records Bureau (NCRB) every 16 minutes a woman is raped in India and every 4 minutes a woman experiences cruelty from her husband.

Married women are not given the same right as given to unmarried women. Do married women do not have the right to give consent to take their own decision. Does being married end the right of having control over one’s body? 

The patriarchal foundation that regulates Indian families has always considered women not worthy of taking any kind of decision or have any say in important matters. They are trained to endure everything dare not to utter a single word against males of their family despite their inhumane behaviour. In Bodhisattwa Gautam v. Subhra Chakraborty[2] The Supreme Court stated that rape is a criminal offense in opposition to basic human rights and a contravention of the victim’s most loved of fundamental rights, namely, the right to life enshrined in Article 21 of the Constitution. Women who experience and desire to undertaking sexual violence from their husbands are presently denied State safety because the Indian regulation in Section 375 of the Indian Penal Code, 1860 has a general marital rape exemption. The basis of this exemption may be traced returned to statements made through Sir Matthew Hale, C.J., in seventeenth century England. Hale wrote: “The husband can not be responsible of a rape dedicated by himself upon his lawful spouse, for by their mutual matrimonial consent and contract, the spouse has given herself in type unto the husband, which she can not retract”[3]

As far as the fourth argument is concerned, it is true that a wife impliedly consents to sexual intercourse with her husband after marriage, but the expression of love through sexual intimacy is not the same as forced sex. On the other hand, it strikes at the very foundation of matrimony irrespective of whether the marriage is a sacrament or a contract. By no stretch of imagination can it be said that a person consents to harm or violence by marriage, and neither does the law permit any person to give such consent.

Thus, marital rape is by hook or crook should be made a crime under section 375 IPC.

Pure Patriarchy: virginity test violates the right to privacy 

Why always women are the one who has to go under all the pain to prove her piousness? why always she is victimize? Why all immunity has been given to men?  

The virginity test is the practice or process to determine whether a girl is a virgin or not, i.e., whether she has been engaged in sexual activity or not. This test is very painful and humiliating for girls of any age. In India, this practice is done in order to check whether a girl is eligible to marry their son or not it’s always a girl who has to prove her piousness and go through heinous ways to prove herself appropriate and full immunity is given to son for anything. Nobody even bothers to think that girls are also human beings they too feel pain and humiliation in opening their intimacy in front of a stranger in order to get her tested. I mean what a sick mentality Indians are carrying that whole of their so-called “honor” lies inside a vagina of women and nothing else. There are moments in a women’s life where she doesn’t want anyone to intrude without her permission.

The kanjarbhut community, one of the tribes in the western Indian part of Maharashtra performs a V-SHAPED RITUAL before the marriage in order to check the virginity of a girl and if a girl is not found a virgin, she and her family are heavily fined and tortured by the whole community. We are living in the 21st century and finding the honor of a family inside the vagina of a girl, the progress of girls has no value at all and the whole of honor lies in whether their daughter-in-law is a virgin or not?

The bridegroom is pressured to have sex with her spouse on the marriage night and given a white bedsheet to test whether or not his spouse is pious or not. Just talking about the latest case in Pune Maharashtra in which the son of a locality from Pune who had studied in London recently married a female from the equal community who’s an exceptionally knowledgeable architect. Following Kanjarbhut traditions, on their first wedding ceremony night, the couple was sent to a lodge room with a white sheet on the bed. Meanwhile, the own circle of relative’s participants and Pancha (judges) waited outside the room of the couple to get the scene of while the groom came out of the room and talked to his own circle of relatives was recorded by a social activist present on the post-bridal ceremony on December 31, 2018. The recording, accessed by Asia Times, showed panchayat participants asking the groom whether or not the “maal (product) was pure or not?” and the groom replied, “Khara, Khara”[4] which means his wife is pure. Here the groom studied in the college of London but had the same mentality.

In 2013, the same type of incident was recorded where 450 unmarried girls were forced to undergo a ‘virginity test because they were getting married under the government’s scheme of ‘Mukhyamantri Kanya Vivah yojana’ when asked by human right activist The state argued that since the scheme supported poor women to get married, a virginity test would prevent already married women from taking advantage of the scheme. As the scheme provides monetary benefits to the newly married couple.

This is really disgusting and shameful that such practices are still in practice and even are performed by the state itself without any shame or humiliation. Even cases are recorded where after getting married if the husband finds that his wife is not a virgin then he leaves him and go for second marriage. This is so brutal in the case of Surjit Singh Thind v. Kanwaljit Kaur[5]the Punjab and Haryana high court held that allowing medical examination women for her virginity would amount to a violation of her right to privacy and personal liberty enshrined under Article 21 of the constitution. In this case, the wife filed a petition for a decree of nullity of marriage on the ground that the marriage had never been consummated because the husband was impotent. The husband took the Défense that the marriage was consummated and he was not impotent. In order to prove that the wife was not a virgin, the husband filed an application for her medical examination. The court held- Allowing the medical examination of a women’s virginity violates her right to privacy under article 21 of the constitution. Such order would amount to roving inquiry against a female who is vulnerable even otherwise. The virginity test cannot constitute the sole basis, to prove the consummation of marriage. 

What bridges rape in war? Patriarchy

Wartime rape is no new crime it is being done for ages. In ancient India, war happens between two states and when one defeats the other then the winning state rapes the women of the defeated because these women are abandoned and are helpless. This is when the concept of JAUHAR[6] sometimes spelled Jowhar or Juhar, was a Hindu practice of mass self-immolation by women, or otherwise execution by their husbands, fathers, or brothers, in India, to avoid capture, enslavement, and rape by invading army, when facing certain defeat during a war.

 Paralyzed by the fear of what men do would shrink our world. By raping women of another country, they try to end their culture. They show that by raping your mothers, wives, daughters you are already defeated. Men rape old women, and they rape tiny girls in front of their mothers. In some cases, they rape with guns and metal bars. Dying women are raped. This is about power, not sex.

It was reported that Indian forces committed gang-rape of 882 Kashmiri girls in 1992 alone. The Humanitarian Law Project/International Educational Development documented greater than two hundred instances of war rape from January 1994. Many instances aren’t suggested due to the disgrace and stigma related to rape in Kashmir. Human rights groups state that one hundred fifty top officers, of the rank of major or above, have participated in torture in addition to sexual violence and that the Indian authorities were protecting up such acts. In 2016, Kashmiri human rights activist and attorney Parvez Imroz has stated that a vast majority of instances of sexual harassment through Indian forces in Kashmir pass unreported.

We are powerless in matters of patriarchy to get raped by the security holders of our country is something horrendous. They are privileged because of their ranks and acts but this doesn’t give them the right to rape.

Conclusion

Stop saying “MEN WILL BE MEN” this gives them added power to show their so-called mardangi they think that they are superior to women because they are men. Start teaching your fathers, husbands, or son that there is no harm to see this world equal and walk with women not against women. Make them emotional so that they can also understand how a woman feels when they are ravished and raped. Don’t say to them mard ko dard nahi hota Because the truth is they too grief but society doesn’t let them cry this makes them emotionless that is why they don’t understand the pain of others. 


[1] AIR 1997 SC 3011

[2] 1996 SCC (1) 490

[3] https://www.lawctopus.com/academike/

[4] https://www.downtoearth.org.in/blog/health/pure-patriarchy-hymenoplasty-commodifies-women-breaches-privacy-rights-67050

[5] AIR 2003 P H 353

[6] https://en.wikipedia.org/wiki/Jauhar#:~:text=Jauhar%2C%20sometimes%20spelled%20Jowhar%20or,certain%20defeat%20during%20a%20war.

Author: SHAILVI GUPTA , BANASTHALI VIDYAPITH

Editor: Kanishka VaishSenior Editor, LexLife India.

LAW RELATING TO RAPE AND SEXUAL CRIMES IN INDIA

Reading time : 8 minutes

Introduction

Sexual crimes in India have always been a matter of great concern. As per the data released by NCRB 32,033 rape cases where reported in 2019, an average of 87 rape cases in a day was seen in the year. Uttar Pradesh and Rajasthan were among the states with worst record of rape and sexual crimes. This data should comes as a shock for the nation as even after such strict laws we are still not able to reduce the number of sexual crimes. The recent case of gang rape of a 50 year old woman in the village of Badaun, Madhya Pradesh has shaken the whole country.

This leads to several questions as to what is the reason behind such alarming rate of sexual offences. Are rape laws not strict enough?  Are there any loopholes in the laws? Is punishment for rape under IPC not adequate?

Understanding the Concept of Rape under IPC

The offence of rape has been defined under Section 375 of Indian Penal Code. A man is said to have committed rape of a woman when he indulges into sexual intercourse with a woman against her will or without her consent. The Section provides with seven circumstances under which sexual intercourse by a man will be considered as rape:-

a. Against her will.

b. Without her consent.

c. With her consent, when her consent is obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

d. When woman gives consent believing that the man is her husband.

e. With her consent when given by reason of unsoundness of mind, or under influence of intoxication or any stupefying or unwholesome substance.

f. With or without her consent, when she is under eighteen years of age.

g. When she is unable to communicate consent.

Consent obtained by fear, misrepresentation, fraud, coercion, under mistake, or reason of unsoundness of mind is no consent. There is a fine distinction between “an act done against the will” and “an act done without the consent”. The Supreme Court has explained the difference between the two in the case of State of Uttar Pradesh v. Chottey Lal, (2011). The expression “against her will” would ordinarily mean that the intercourse was done by a man with a woman despite her resistance and opposition. On the other, the expression “without her consent” would comprehend an act of reason accompanied by deliberation.

The Section has also included two exceptions:

1. A medical procedure or intervention shall not comprise rape.

2. Sexual intercourse by a man with his wife, wife not being below 18 years is not rape.

The age limit in exception 2 was changed from 15 to 18 years in the case of Independent Thought v. UOI AIR 2017. The Supreme Court held that this exception was making an unnecessary distinction between a married girl child and an unmarried girl child which violated Articles 14, 15, and 21 of Constitution of India. It was also inconsistent with provisions of POCSO Act.

Punishment (Section 376)

1. Rape- Rigorous imprisonment for a term not less than 10 years which may extend to life imprisonment and also liable to fine.

2. Rape of a woman below 12 years of age- Minimum 20 years’ imprisonment or jail for rest of life or death.

3. Rape of a woman less than 16 years – Minimum punishment of 20 years imprisonment which may be extended to life.

4. Gang rape- Rigorous imprisonment for 20 years which may be extended to life and also liable to fine.

5. Gang rape on woman under 16 years- Imprisonment for life and liable to fine.

6. Gang rape on woman under 12 years- Imprisonment for life and liable to fine or death.

7. Repeat Offenders- A person who has already been convicted under the sections 376, 376A, or 376D and is subsequently convicted of an offence under these sections shall be punished with imprisonment for life or death.

Evolution of Criminal Law

The laws relating to sexual offences have gone through many reforms, courts in their judgement have decided many cases which were widely criticized and in order to nullify the effect of such decisions provisions relating to law of rape as stated earlier were extensively amended in 1983 vide Criminal Law (Amendment) Act 43 of 1983. One such case was Tukaram v. State of Maharashtra AIR 1979, popularly known as Mathura rape case. Mathura, an 18 year old Harijan girl was raped and molested by two police constables Ganpat and Tukaram at the police station after keeping her in the late hours of the night. The Supreme Court in this case reversed the finding of Bombay High Court and held that Mathura was subjected to no fear and since there was no resistance on her part it could be said that there was consent. This decision was not appreciated by the public and was said to be a failure of courts to safeguard rights of victims of rape.

Important Amendments in Criminal Law

The inadequacy of the laws of rape manifested in a number of judgements of the Supreme Court such as Tukaram v. State of Maharashtra AIR 1979, Sidheshwar Ganguly v. State of West Bengal AIR 1958, Bharwada Bhoginbhai Hirjibhai v. State of Gujarat AIR 1983. It was an absolute failure to safeguard the rights of the innocent victims against such heinous crimes. The Parliament in order to strengthen the law brought several amendments to the penal laws and the procedural laws. Some of the important changes brought about by the Act 43 of 1983 and Act 13 of 2013 and other provisions are listed below:

(i) Consent of a woman of unsound mind or under intoxication: the clauses fifthly and sixthly were added by the Act of 1983 to Section 375. The consent of a woman who is of unsound mind or under influence of intoxicants would not be held as a valid consent because during that state she is unable to understand the nature and consequences of the act.

(ii) Burden of proof of innocence on accused: section 114A was inserted in The Evidence Act, 1872 which made the presumption of absence of consent of the woman if the case fell under section 376(2) clauses (a), (b), (c), (d), (e) and (g), IPC shifting the burden of proof of innocence on the accused.

(iii) Prohibition of disclosure of identity of the victim: section 228A, IPC clause prohibited the disclosure of identity of victims in rape cases under sections 376, 376A, 376B, 376C, 376D 0r 376E IPC.

(iv) Persistent vegetative state: clause 376A was added punishing the offenders an imprisonment for a term not less than 20 years or which may extend to life when the injury caused to the victim results in death of the woman or causes to woman to be in a Permanent Vegetative State (PVS).

(v) Trial in camera: section 327, CrPC, 1973 was amended making the provision for trial of rape cases or an offence under sections 376A to 376D, IPC in camera and publication of trial proceedings in such cases without the prior approval of the Court was also prohibited.

(vi) Custodial Rape: the clause 376C was added to punish a person who abuses his position of authority or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse not amounting to the offence of rape for a term not less than 5 years which may extend to 10 years.

(vii) Intercourse with wife during judicial separation prohibited: sexual intercourse with one’s own wife during judicial separation without her consent is punishable under 376B with imprisonment for a term not less than 2 years which may extend to 7 years.

(viii) Minimum punishment for rape: minimum punishment for rape under section 376 clause (1) provided imprisonment for 7 years which may extend to life and imprisonment for 10 years which may extend to life under clause (2) of IPC.

(ix) Prohibition of character assassination of prosecutrix:  The Criminal Law (Amendment) Act 13 of 2013 inserted a “Proviso clause” to section 146 of The Indian Evidence Act, prohibiting questions about prosecutrix character in cross-examination.

Are Rape Laws gender-neutral?

The rape laws defined under IPC recognizes only female victims. Several countries such as United Kingdom, United States, Australia have provisions for gender-neutral laws. India is still behind in making laws for protecting male rape victims; it is a breach of their right to equality and right to life and personal liberty. The POCSO Act does protect male minors but there are no laws as to protect adult males from sexual offences. Section 377 also does not cover the whole issue of male rapes while criminalizing carnal intercourse against the order of nature. The number of false rape cases has also been increasing. The mental trauma that a false accusation can cause has been recognized for other offences but laws relating to false rape accusation are still to be made. This only adds to the unfairness of laws that a male accused is subject to in the country.

Status quo of rape laws in India

The current rape laws in the country have proven to be not as effective. However, with the increase of punishment and more strict laws defining various aspects of consent has helped in understanding the case of sexual offence in a new light.

Marital rape is an issue which has not been mentioned in the Indian laws; consent is a major condition in any case of rape but consent after marriage is not vital for sexual intercourse according to the laws. This breaches the right of bodily integrity of a person.

The long battle to get justice has often made the victims to not opt for reporting the crime and the social stigma that a case of rape can cause only worsens the situation. The victims needs proper counselling to inculcate confidence and initiate a case against the offender seeking justice. The delay in judgement often helps the offender to get an escape which breaches the purpose of law; speedy trial of such cases is needed. Also, new provisions must be added defining the offence of child sex abuse, incest and marital rape in the IPC.

Conclusion

The laws relating to rapes and sexual offences need reform in both statutory laws and procedural laws. These crimes are a huge threat for the society and new policies and laws can only help us curb this problem. An environment needs to be created which ensures the public that there rights are protected at all cost. Our aim must be to protect every citizen beyond the barriers of age, sex, caste, creed from all kinds of sexual offences.

Author: Surabhi Jha

Editor: Kanishka Vaish, Editor, LexLife India.

Law Regarding Consensual Intercourse with Minors in India

Reading time: 6-8 minutes.

Law is a mere reflection of the interest of its society. In a modern society, any change with time is certain. With ever evolving contemporary ideas and perceptions from different groups of people, it is common for the law making bodies to face hardship to take quick decision when it comes to conflict of interests.

Such is the condition of every country, struggling to answer the irresolvable question, ‘At which age is it right for a minor to consent to indulge oneself in a sexual intercourse and is it ethical to allow a minor to have a consensual intercourse?’.

The Court is under immense pressure while dealing with the current issue, because every decision made regarding the same reflects the tradition, culture and history of the country.

The word “consent”, is the manifestation one’s actual will to do any act. “Will”, on the other hand is the mere desire to do an act. Therefore, any person who engages in a sexual intercourse with another person with will and no consent becomes liable and held guilty for committing sexual offence.

Until 2017, the IPC did not recognize marital rape, when the SC brought down the exception to Sec. 375, vesting men the right to consummate marriages with their wives under the age of 15-18, in its judgment of the case Independent Thought v. Union of India.

This law curbs the right of consent to all women who are legally married i.e. wife, who is below the age of 18 is restricted from a sexual relation and after attaining majority she has no power to reject due to presumption of matrimonial consent.

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What is the concept of ‘statutory rape’ among minors?

Any form of sexual relationship between two minors, irrespective of their consent is known as statutory rape, which is unlawful because either parties of such act is below the legal age to get involved sexually, further making them incapable of giving their consent to the said act. Hence, the consent is irrelevant.

Statutory rape falls under Section 375 and 376 of Indian Penal Code. The Convention of Elimination of Discrimination against Women (CEDAW) supports the view of withdrawing the legal effect on child marriage. Due to this, after 1980, India treats child marriage as voidable.

The other 3 major reforms in the sexual intercourse laws of India:

1. Protection of Children from Sexual Offences Act, 2012

  • CHAPTER II of the Act:

In order to protect the children from any form of sexual assault, sexual harassment to which they are incapable of giving their consent, such as

  1. Penetrative Sexual Assault
  2. Aggravated Penetrative Sexual Assault
  3. Sexual Assault
  4. Aggravated Sexual Assault
  5. Sexual Harassment
  6. Chapter III of the Act

Under this chapter using child for pornographic purposes and about the respective punishments are defined.

  • Section 2(d) of the POCSO Act defines a ‘child’ as to any person below the age of 18. This act provides justice without any gender discrimination as every person under the age of 18 who are incompetent to give their consent. Hence, any person, involved with any sexual act covered under this act and the victim involved is under the age of 18, the offence is punishable as it is considered to be violation of this Act.
  • Section 34(1) states on offence committed by the offender, who is a child himself, shall be tried under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000.
  • Sec. 19 of the Act encourages and make it obligatory to report such crime to the Special Juvenile Police Unit or the local police enshrined in POCSO, failure of which is punishable with imprisonment of either description which may extend to six months or with fine or with both.

2. Criminal Law (Amendment) Act, 2013: Sexual Offences

a) Protection of Children from Sexual Offences Act, 2012.

  • The age of a “child”, was reduced from 18 years to 16 years under Section 2(d).
  • Punishment for rape under the act was increased from 7 years imprisonment to 10 years imprisonment and fine.
  • Section 42: An act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376C, 376D, 376E, 509, 376AB, 376DA, and 376DB  of IPC, where the offender shall be liable to punishment under this Act or under the Indian Penal Code.

b) Code of Criminal Procedure (CrPC), 1973

  • Section 161: An alleged woman against whom, any such offence has been committed shall be recorded, by a woman police officer or any woman officer under.
  • Section 273: states that while recording the evidence of a victim woman below the age of 18, the court will ensure that such woman is not confronted by the accused.

2. Criminal Law (Amendment) Ordinance, 2018

A law initiated primarily to amend certain laws related to rape of minors.

  1. Indian Penal Code (IPC), 1860
  2. Enhanced the punishment for rape under IPC, where the minimum imprisonment has been increased from seven years to ten years rigorous imprisonment.
  3. Then
Age GroupOffencePunishment
Below 12 yearsRapeRigorous imprisonment from 20 years extendable to life imprisonment, and fine
Gang RapeLife imprisonment and fine.
Below 16 yearsRapeMinimum rigorous imprisonment of 20 years that can be extendable to life imprisonment and fine.
Gang RapeLife imprisonment, along with fine.

b) Code of Criminal Procedure (CrPC), 1973

  • The maximum time limit to complete investigation was decreased from three to two months.
  • An appeal in any rape case has to necessarily be disposed off within six months.
  • No anticipatory bail to be granted to the alleged accused of sexual assault against minor girls below the age of 12 and 16.

c) Indian Evidence Act, 1872

To determine the consent of the victim, his past sexual experiences are disregarded. This provision was extended to include girls below 12 and 16 years of age as victims.

LAWS GOVERINIG OTHER COUNTRIES AROUNG THE GLOBE:

COUNTRYLAWAGE OF CONSENT
JAPANThe Penal Code of Japan.Juvenile Obscene Act.The Civil Codes.13 years     15-18   20 years
GERMANYPenal CodeCriminal Code14 years14 – 16 years
MEXICO 16 – 18 years
FRANCEPenal Code15 years
RUSSIACriminal Code16 years

What is the reasoning for criminalizing consensual intercourse?

The British Jurist of the 18th century, Sir Matthew Hale defined rape as, “An accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent.”

After sheer struggle, some feminists have favored these laws, as it is the yardstick to combat the sexual abuse of young girls. A statutory rape charged, would not require proof of force or coercion, therefore young and vulnerable girls are, guarded against such crimes committed by the adults and actual rapists via deterrence and real possibility of retribution.

It is legally required to have a right and a set age for the same, without any moral obligation. Specifically, in a country where the age of consent for a married woman is lower than an unmarried woman and where marriage is taken as a license to rape, this must be reformed.

The law relating to Statutory rape must be stringent as this section of society seeks to protect minors who are mentally- incapacitated as well. As stated earlier, minors are incapable to understand the dire consequences of their actions and desires, it is the duty of law to protect the innocence of the youth.

In conclusion

Maybe, the laws of consent must be flexible and realistic just to ensure and minimize the victim rate. Similarly one must be, appreciated for attaining sexual maturity quicker, enabling them to make choices about their own bodies. 

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To give up one’s “virtue” to a person who is unworthy and most importantly unwilling to pay with his hand in marriage is gimmick and speaks about the poor judgment of the youths of today.

The forbidden fruit is always more lucrative and severe restrictions fuels curiosity. By criminalizing consensual sexual activity, we deny them access to protective and safe medical procedures. This becomes one of the reasons for the increase in abortions.

A law fixing the age of consent must be, understood in a manner that protects our children against abuse as well as prosecution. These laws should serve an educative purpose and provide reformative punishments.


Author: R. Danyuktaa Shruti from VIT University, Chennai.

Editor: Tamanna Gupta from RGNUL, Patiala


Marital Rape: An unheeded issue

Reading time: 7-8 minutes.

Does a woman or man lose their degree of sexual autonomy after marriage? Hon’ble Justice Dhananjaya Y. Chandrachud answered this debatable question in the negative. 

Respect is one of the foundation stones upon which the institution of marriage is built. The wedlock evokes an implied value of respecting the choices, individuality, and decisions of the spouse.

The husband and wife must ensure that the way they accept each other’s approval, they must also agree with their disagreement. And understand that a ‘NO’ is a clear and strong denial.

How pervasive is rape?

Rape is usually understood as unwanted, coerced or non-consensual sexual intercourse. Almost every day, women in our country fall prey to the insatiable desire for sex of men. Despite several protections, they are subjected to offences like domestic violence and sexual exploitation. Among various such problems, lies the unheeded issue of ‘marital rape’.

In ancient India, marital rape was not even accepted as an issue disdaining women. The primary reason behind such thinking is the patriarchal and male-dominated framework of Indian society. The portrayal of a woman as merely a property and a chattel of her husband is consistent since time immemorial.

Having sex with the wife is considered to be a manifested right of husband after entering into marital relations, which the former cannot retract. Even today, marriage is construed as an irrevocable and perpetual consent to sex.

It is visualised as a license to the men to go to any dangerous extent and physically exploit their wives. Many concur to the notion that a wife is duty bound to surrender to the desire and sexual whims of her husband without any complain.

Disappointingly, a married woman above the age of majority finds nothing to her rescue. In other words, law has permitted the husband to rape her wife without any intrusion by the State. It would be no wrong if it is said that marriage assigns all the rights of a wife to her husband and renders her helpless.

According to the dictum of Chief Justice Sir Matthew Hale, a husband cannot be convicted of raping his own wife on the sole reasoning that she gives up her body to the husband at the time of marriage. This principle was considered as an underlying claim for the exemption in case of marital rape.

It must be noted that the rape by husband is more brutal than rape by a stranger and its ignorance is a serious breach of a person’s fundamental right to life and personal liberty.

It’s vital that our legislators pay instant attention to the realities of sexual abuse. The protection of institution of marriage cannot be a valid defence to contravene the fundamental right of a woman to live with dignity and bodily integrity.

What is the provision in IPC regarding marital rape?

The sixth description given to the definition of rape under Section 375 of Indian Penal Code clearly states that the consent of a girl below the age of 18 years is immaterial and the sexual intercourse with her comes under the umbrella of rape.

Prior to the decision of Supreme Court in Independent Thoughts vs Union of India , exception 2 to the same section stated that “the sexual acts by a man with his wife, the wife not being under 15 years of age, is not rape.” But in this case, the Apex Court of India, in order to harmonise Indian Penal Code, Protection of Children from Sexual Offences Act (POCSO), Juvenile Justice (Care and Protection of Children) Act and Protection of Women from Domestic Violence Act, disapproved the distinction between an unmarried and a married girl.

The judges were of the view that a girl child remains a child irrespective of her marital status .When the consenting age has been fixed to 18 years; being married carves out no justification for the exception. The Honourable Court thus held that Exception 2 to Section 375 must now be meaningfully read as “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape .”

Even as the decision in the aforementioned case harmonised the laws safeguarding the rights of minor girls, the question to protect married women above the age of 18 against sexual exploitation, remains wide open.

Several attempts have been made by the Law Commission of India and various committees in this direction, but all in vain. As the legislators of our country, are only concerned about the institution of marriage and least attentive to the brutal circumstances of marital rape which a married woman goes through.

What are the constitutional safeguards against marital rape?

Although, marital rape is not criminalized in India, the Constitution of India provides protection against the flaws that obstruct women empowerment. The Indian Constitution grants us an all-encompassing right as Article 21.

The judicial interpretation of years has expanded the scope of the article and right to live with human dignity is now within the purview of this provision. The heinous act of rape in marriages evidently contravenes the right to live with dignity and to this effect, it can be said that the exception provided under Section 375 of the Indian Penal Code, 1860 stands unwarranted.

Also, the right to privacy has aroused as a recent judicial development where the Apex Court observed that no individual can be subjected to intrusion to their privacy and personal space.

In the celebrated case of Justice K.S. Puttuswamy (Retd.) v. Union of India, the Supreme Court with the ratio of 9:0 upheld the right to privacy as an inherent and integral part of Article 21. When interpreted in the context of marital rape, a wife is entitled to right to sexual privacy. Hence, no one can violate her right and invade into her privacy against her wish.

Article 14 of Indian Constitution guarantees the fundamental right where under “the State shall not deny any person equality before the law or equal protection of the laws within the territory of India.” This article, therefore acts as a custodian against discrimination by the State.

But the exception under Section 375 of the Indian Penal Code discriminates with a married woman and denies her the protection from rape. Thus, it is submitted that the exception is not a reasonable classification and therefore, violates Article 14 of the Constitution.

Similarly, Article 15(1) says that “the State shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, and place of birth or any of them.” However, the exception to Section 375 assumes non-withdrawable consent of married women to sex.

The assumption strengthens several gender stereotypes which subordinates women in the society and hence, is violative of Article 15 of the Constitution. The aforesaid drawbacks in the legal system of the country must be eradicated to ensure equal justice to married woman against mental and physical abuse faced by them.

What is the constructive stand of judiciary?

While the Legislature is in the process of finding a possible solution to this widespread problem, the Courts are playing a proactive role in ensuring a balance between the criminality of the act and subsequent misuse of the laws saving married women from sexual assault.

The Hon’ble Supreme Court in the case of Suchita Srivastava v. Chandigarh Administration explicitly stated, “A woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ under Article 21 and that this choice can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected.”

At various instances, the Apex Court has taken cognizance of the views eununciated by Justice (Retd.) JS Verma Committee, where it was concluded that the rapist remains the same regardless of his relation with the victim.

Moreover, in a judgement that garnered a lot of appreciation, Honourable Mr. Justice J.B. Pardiwala of Gujarat HC expressed concern on the limitations of the laws. His take on the criminalization was clear as he advocated for the outlawing of the non-consensual sex in marriages.

And, preached that inhumane treatment with women is absolutely intolerable. Evidently, the Indian Courts affirm that women are no properties of their spouse and are rightfully entitled to equivalent treatment socially as well as legally.

In conclusion…

The institution of marriage is definitely a bond of trust, respect ,and love. Procreation can be the primary purpose of marriage but the use of violence is absolutely unacceptable. The wife’s individuality and choices must be honoured and the line drawn between rapes within marriages and outside must be erased at earliest.

In India, long drawn debate of marital rape has ironically, not received much of deserved attention from the lawmakers. The Parliamentarians are of the view that marital rape could not be criminalized in our country as marriages are sacrosanct. And change or reformation in this system can destroy the sacred institution of marriage.

Based on the absurd logic that criminalizing the act will attack the sanctity of marriage and it might be used as a weapon by wife to attack the innocent husband, the State has been ignoring and violating the basic human rights of married women. This visibly indicates the careless and non-intervening approach of Legislature in family sphere.

But the point they usually tend to forget is that the culture and tradition of India worships women as deities. They must soon realise that if the paramountcy of the Constitution is to be maintained, the honor and worth of womenfolk must be vindicated. If this celebrated heritage is to be reinstated, women must find a place of safety and reverence in the society.

Nevertheless, the pragmatic viewpoint of Indian Judiciary in sundry cases is admired. The observations made by the Apex Court of India in support of the women can be perceived as the silver lining amidst, dark clouds of cruelty and discrimination.

-This article is brought to you in collaboration with Vaidehi Maharishi from S.S. Jain Subodh Law College, Jaipur.