Non-consensual sex is RAPE, be it with minor wife or adult married woman

Here's why SC's judgement on sex with a minor wife has reopened the debate on marital rape

The Supreme Court on Wednesday, October 11, ruled that sexual intercourse with a minor wife is a criminal offense and will be considered as rape. The apex court further stated that the minor wife can lodge a complaint against her husband within one year.

The Exception 2 in Section 375 of the IPC, which was ruled out by the Supreme Court, stated that sexual intercourse by a man with his own wife who is not aged below 15 did not constitute as rape. The court also asserted that the age of consent was 18 and that could not be lowered. The court which had earlier stated that it would not like to venture into the domain of marital rape has criminalised sexual relations between a man and his minor wife.

While the court has taken into consideration the trauma faced by a married woman who is a minor, it has chosen to ignore the harassment suffered by married women who are above 18 who could be sexually abused by their husbands. Firstly, how can the definition of ‘rape’ change with a possession of a marriage certificate and the age of the woman?

What I fail to understand is when the honourable Supreme Court can declare sex with a minor as rape, why is rape of any woman by her husband not considered so?

Also Read: 5 reasons why it is absolutely okay to rape your wife in India. WATCH

While discussing marital rape, Supreme Court had affirmed that criminalising marital rape ‘may destabilise institution of marriage’. Does a man having forced sex with his better half without her consent not destroy the institution of marriage already? Marital rape forces a woman to suffer the worst form of exploitation in her own home. How does that not amount to a criminal offence?

There is, of course, the other argument over how an underage marriage is valid in the first place. If the honourable court and our elected representatives are of the view that recognising marital rape would lead to destabilisation of marriage, how is it different for an underage? The so-called sanctity of marriage is not independent of the age factor. That’s the plain reality of our society whether we like it or not.

The court has now acknowledged that the sexual intercourse with a minor was a violation of the fundamental right to life and equality of minors. Agreed. But how is sexual intercourse with an adult woman without her consent not a violation of HER fundamental right?

It is bizarre how the court has raised an objection to only criminalise rape with a wife who is a minor but on the other hand, gave men a free pass to rape their wives just because they were married off at the legal age. Isn’t the court being unfair and performing a disservice to several Indian women who could be facing harassment by their husbands but can do nothing about it because they are above a certain age?

“If all sexual acts by a man with his own wife qualify to be marital rape, then the judgment as to whether it is a marital rape or not will singularly rest with the wife,” the court had observed.

By not delving into the issue of marital rape, is the court hinting that marriage is a license to rape someone without the fear of being punished if the woman is an adult? It is high time that the court takes cognisance of the situation and comes up with a strict law that criminalises sexual abuse of a woman, whether in a marriage or not. It is extremely disturbing that while countries like USA, Canada, France and Brazil have taken a step forward and criminalised marital rape, the Indian law assumes that just because a woman is married at the legal age, she automatically gives her consent to have sex. Leaving this decision to our elected representatives will take another century or so.

Sexual abuse should be treated as a serious criminal offense, irrespective of whether the woman is married or not, is a minor or an adult.

Read More: Forced sexual intercourse with wife is not a criminal offence: Supreme Court

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