Martial Rape Cannot Be Considered As Criminal Act : SC:- The Supreme Court made some shocking statements on Wednesday on the raging issue whether to make forced martial intercourse and sexual acts, part of a rape offence in penal law. The SC said that it cannot be considered as a criminal act.
The Section 375 of the Indian Penal Code (IPC), which defines the offence of rape, has an exception clause. According to the clause, it is not considered a rape, if the intercourse or sexual act by a man with his wife, not below 15 years. However, the aspect of protecting married girls, from the forced sexual acts by their spouses was discussed by the Parliament or no, the apex court sought to know. The girls, especially between the age group of 15 and 18 years.
It also asked if the court could step in to protect the rights of such married girls who may be sexually exploited by their spouses.
“Parliament has extensively debated the issue of marital rape and considered that it was not an offence of rape. Therefore, it cannot be considered as a criminal offence,” a bench of justices M.B. Lokur and Deepak Gupta said. The apex court also said that marriage of a girl, who is below the age of 15 years, was “illegal”.
“There are cases when college-going teens, below 18 years of age, engage in sexual activities consensually and get booked under the law. Who is going to suffer? The boy is not at fault. The punishment of seven years is too harsh,” the bench observed.
The male gets booked for rape, when a girl, under 18 years of age, elopes and engages in consensual sexual activity, said the Supreme Court. “In these cases, we do have problem if look at various aspects,” the bench said. It further asked the Centre about the number of prosecutions under the Child Marriage Act for past three years in three weeks and even to notify it.
It also asked Centre to apprise it about appointment of the Child Marriage Prohibition Officers under statutory provisions in the country and posted the matter for hearing after four weeks.
The apex court said, according to prevailing law, it is termed as rape if a man has physical intercourse with a girl under 15 years of age, irrespective of “consent or no consent”. And no offence of rape is made out, if she is below 18 years of age, but more than 15 and married. Advocate Gaurav Agarwal appearing for NGO Independent Thought said that “distinction made in between 18 and 15 is illegal and unconstitutional.”
“Parliament cannot impinge upon Article 21 by allowing the girl to marry under 18 years of age and allowing her to get pregnant or have intercourse. The Parliament should have considered various reports of the United Nations,” he said. A girl in the age group of 15-18, is not physically developed and she is not capable of taking an informed decision or consent, said Mr. Agarwal.
“The State has failed to protect her as there is no protection for her as she is below 18. Above 18 years of age she is developed and can think of coming out of abusive relationship,” the lawyer said.
Senior advocate Gopal Subramaniam, who was present in the courtroom said, various aspects have been considered and after that, suggestion to criminalize marital rape was made. Subramaniam was part of the Justice J.S. Verma Committee constituted in the aftermath of the December 16 gangrape in Delhi. Former Chief Justice J.S. Verma headed the panel, which comprised former Judge Leila Seth and Subramaniam.
“Without any renumeration we have submitted the report to the government and that too without any extension. It was an exhaustive work,” he said.
Advocate Binu Tamta appearing for Centre said that the Parliament has kept the age of 15 as threshold, keeping the social and economic conditions of the country in mind. “It has been considered pragmatically and every aspect was considered by the Parliament,” she said, adding that keeping the child marriage prevalent in some societies it has been done.
Earlier, in 2015, the apex court made National Commission for Women party. The party was formed to explain how the offence of rape in the IPC afforded an exception to a man to have physical relationship with his minor wife and still not qualify it as crime.