Revisiting marital laws

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Revisiting marital laws

No means no and rape is rape. Marriage cannot be a fig leaf to excuse sexual violence

The Supreme Court in its wisdom recently proclaimed that consensual sex between a minor wife over 15 years of age and her husband does not qualify as rape. This was after the Government strongly stated its position against the concept of marital rape. However, the Bench did come out strongly with a statement, when two unmarried minors indulge in consensual relations, that must not be seen as rape. This should be welcomed. Young people have sex and that is the reality of life, but to punish them for this is unfair and the mitigating circumstances of age must be considered in cases of statutory rape of minors. To give the cover of marriage, given the fairly loose definition of what constitutes a marriage in the eyes of the law, to statutory rape will lead to its clear misuse. Given that outside urban India most marriages are still not registered, courts in the past have upheld that even  exchange of garlands in front of a priest is good enough. If the law says that a minor is incapable of making up their mind on providing consent for sex, how can a minor give ‘consent’ for marriage, something that a young girl might be pushed into either by her family or even a man with lascivious intent.

Recently, there was a case of a young girl in the national capital, who was abducted, raped and eventually found, thanks to the dedication of her father, albeit three weeks pregnant. Her abductor claimed to have married her and that sexual intercourse was consensual. In this case the girl was just 13 years of age and statutory rape provisions would still apply, but what if she would have been 15 years of age? What would have happened then? Yes, the law has to consider some changes for sex between younger people because burying our heads in the sand won’t take away the fact that it happens. Indeed, opening our eyes to the situation can lead to improvement of sexual health.

However, on other aspect of being in denial of marital sexual violence, the Government needs to open its eyes. Marital rape is real and it happens in India, as it does across every society in the world. There is a legitimate fear among some law officers that any provisions can be misused. Yet, the fear of misuse cannot be the basis to prevent a law from being promulgated. Women in the country face immense amount of sexual violence, not just from strangers but in far too many cases from their husbands as well. Marriage is not a legal sanction for a man to keep a woman as his sexual plaything. We have to recognise that and not bury our heads in the sand like we have done with underage sex. And the judiciary, at every level, should realise this, and if it requires sexual sensitivity training for our army of mainly male judges, that must be done.

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