Marriage Over Consent- Is It Your Only Option?

The Honourable Supreme Court in its ruling on Section 375 of the Indian Penal Code (IPC) does not criminalise non-consensual sex, where the woman has been forced into intercourse by her husband. The ruling is flawed, and leaves women and even young girls vulnerable to rape and sexual abuse without any room for legal recourse.

While Section 375 defines rape as a crime, it makes an exception for intercourse or any sexual act by a man with his wife, not below 15 years. The basic premise of the Act is unconstitutional and goes against Article 21 of the constitution which sets the minimum age for marriage of girls at 18 years. This provision is a gross violation of women’s rights, and leaves girls in the age group of 15-18 years vulnerable to sexual violence and exploitation.

Young girls, in this age group, are still developing physically and mentally, and learning to make informed decisions and choices regarding their health and life. While the trauma of rape for the minor is in itself a disproportionate burden, an unwanted pregnancy would not only jeopardise her health and well-being but also that of the child.

Poonam Muttreja, Executive Director, Population Foundation of India says, “We reiterate our firm stand on the need to safeguard women’s rights. We urge the Supreme Court to recognise the fear that women live with on a daily basis, the threat of rape or sexual violence that shadows them in everything that they do. By making an exception for husbands and wives the ruling enables men to prey on women in the security of her home.” Working in the field of women empowerment and family planning for decades, she feels that the Government should review this Act through the prism of rights of women and girls.

The third round of the Indian National Family Health Survey 3 (NFHS) conducted in 2005-06 recorded that 40.6 % of married women aged 15-49 years face some form of domestic violence. It also states that 70% of women who were victims of child marriage are victims of marital violence. Moreover, 4 in every 10 women (41%) in India experience harassment or violence before the age of 19. These statistics give a clear indication of the kind of sexual harassment and violence young girls and women face in India. Despite these startling figures, the Parliament did not consider bringing in a clause to put an end to such instances of violence and crime.

While Section 375 defines rape as a crime, it makes an exception for intercourse or any sexual act between married couples, not below 15 years. For girls in the age group of 15-18 years this provision leaves them vulnerable to sexual violence and exploitation and is a gross violation of women’s rights.

The Honourable Supreme Court should review the Act through the prism of the rights of women and girls and look at a stronger and more stringent measure under the law to ensure that all acts of forced and non-consensual sex are punishable. The court should also look at strengthening Section 375 to protect the rights of minor girls and women to ensure that their safety and rights are safeguarded.