Recently, a two-judge Bench of the Supreme Court heard a petition on the constitutionality of the marital rape exception in the IPC (Exception 2 to Section 375). The petitioners pointed to the contradictions between the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), which defines “child” as a person below 18 years, and the marital rape exception in the IPC, which states that sexual intercourse between a man and his wife (who is not under 15 years) is not rape. The Bench apparently inquired whether the court must intervene to provide protection to married girls between 15 and 18 years from sexual exploitation by their spouse, given the legislative intention to exempt marital rape from prosecution.
The technicality is easily answered because the POCSO Act does not carve out any exception in favour of marriage. The legislative intention is also evident from Section 42A of the POCSO Act, which provides that in case of inconsistency with the provisions of any other law, the POCSO Act will override.
Disjunction between law and reality
The marital rape exception under the IPC has not prevented the police from registering cases under the POCSO Act when the victim is above 15 years and is married to the accused. Studies by the Centre for Child and the Law at the National Law School of India University, Bengaluru have revealed that the victim was married to the accused before or during trial in 19% of the cases in Delhi, 8% in Assam, and 6% in Maharashtra. The percentage of cases in which the victim was in a “romantic relationship” with the accused, including marriage, stood at 29% in Delhi, 20% in Assam, and 21% in Maharashtra. In almost all the cases, the special courts acquitted the husband or boyfriend because the victim turned hostile, or her age was not proved, or she stated that the marriage was consensual.
The higher judiciary has largely taken a lenient approach in such cases. The Gujarat High Court in Yunusbhai Shaikh v. State of Gujarat (2015) quashed the FIR against the accused under the IPC and POCSO holding, “[the victim] is admitting... that she had accompanied the applicant on her own free will and... since she was in love with the applicant and the applicant also loved her, they decided to get married.” It added, however, that proceedings under the Prohibition of Child Marriage Act, 2006 (PCMA) should be initiated against the person(s) who performed the nikah , since the PCMA being ‘special law’ would override ‘general’ personal laws. The Gauhati High Court in Jahirul Maulanav. State of Assam (2016) quashed the chargesheet against a man who had allegedly raped a minor. Since the victim was his wife and had borne his child, the court felt that to continue criminal proceedings would defeat the ends of justice. However, the Karnataka High Court faced a case ( Soni Nihal v. Sri. Sandeep Patel, 2017) with nearly identical facts and observed that the “criminal proceedings initiated for the alleged offence [rape] cannot be quashed.”
Acquittals are the norm as Section 42A of the POCSO Act is not aligned with the social reality of normal sexual exploration among teenagers and the belief about the sanctity of marriage held by most judges, prosecutors, and the police. A few Delhi judges held that a strict interpretation would interfere with the autonomy of teenagers. Many special courts felt the parties were married, and it would be unfair to punish the man for what appeared to be a consensual relationship.
The POCSO’s approach fails to recognise the autonomy and evolving capacity of children, particularly adolescents. Parliament and the Supreme Court need to consider the South African Constitutional Court’s conclusions in Teddy Bear Clinic for Abused Children v. Minister of Justice and Constitutional Development (2013), in which provisions that criminalised consensual sexual conduct of adolescents between 12 and 16 years were held unconstitutional. At the same time, the government and courts cannot be oblivious to sexual violence within personal relationships. CCL studies show that courts do not consider whether the minor consented freely, or the child was groomed by the accused, or whether the marriage was forced.
Demands for strict construction of all sexual contact with children as rape and the blind exemption accorded to sexual violence within marriage are both incompatible with the constitutional guarantee of a right to life of dignity and protection against violence. An acceptable exception would only be one that is premised on respect for adolescent children’s right to physical integrity and freedom of expression with safeguards against grooming, force, coercion, and exploitation.
Swagata Raha is senior legal researcher (consultant) & Shraddha Chaudhary is legal researcher, Centre for Child and the Law, NLSIU, Bengaluru
