After Triple Talaq, SC Criminalises Sex With Minor Wife, Rules It Rape!

Now, the exception clause to Section 375 permitting sex by a man with his wife, not below 15 as 'unconstitutional', rules Supreme Court and it’s a beginning, writes Gajanan Khergamker

It has finally happened. After months of campaigning, the issue of marital rape is now finally being tackled, albeit piecemeal, by India’s Supreme Court. After taking the issue of instant Triple Talaq by the horns, India’s Apex Court, on October 11th 2017, addressing the issue of Marital Rape, struck down the exception clause to the Rape provision in the Indian Penal Code and ruled sexual intercourse with a minor wife between 15 years and 18 years of age as being ‘unconstitutional’. The act is now a crime and amounts to Rape.

Despite earlier stating it does not wish to get into the domain of marital rape, an issue that borders on breaching personal rights and religious codes, the apex court has now proclaimed that the age of consent is 18 years for a woman and that cannot be whittled down.

The issue of marital rape is being tackled, albeit piecemeal, by Supreme Court. Image for representational purpose only
The two-judge bench said that sexual intercourse with a wife between 15 years and 18 years amounts to rape. In reaching this conclusion, the Supreme Court relied on the Child Marriage Prohibition Act too to reach this conclusion.

It may be recalled that the Gujarat High Court had, in 2015 ruled that Prohibition of Child Marriage Act will apply to a Muslim person too while turning down the petition of a Yunush Shaikh who had moved the High Court to quash an FIR registered against him. The FIR was registered against him for abduction and rape under the Indian Penal Code and Protection of Children from Sexual Offences Act, 2012. He had eloped and married a 16-year-old girl in his neighbourhood.

In this case, Justice Pardhiwala relied an earlier a case in which on a conflict between any special law with personal law, a learned Single Judge of the Karnataka High Court in the case of Seema Begaum vs. State of Karnataka had ruled:
An   operative   Act   is   the   expression   of   the   will   of   sovereign   legislature; it overrides the consistent provisions of the existing personal   law. The persona law has to submit to the statute law. The personal law cannot be repugnant, contrariant or derogatory to the statute.

When   a   later   statute   makes   a   contrary   provision   to   the   earlier   statute, it has to be taken that the Parliament has intended  the earlier   statute to be repealed, though it may not have said so expressly. The same   is   in   accordance   with   the   maxim   Leges Posteriores Priores Contrarias Abrogant. (Later laws abrogate earlier contrary laws).

The  statement  of objects  and  reasons  can  be used  for  the limited   purpose   of   understanding   the   background   and   the   antecedent   state   of   affairs leading up to the legislation. Reference to the statement of objects   and reasons  is permissible  to understand  the surrounding  circumstances   which render the remedying of the evil a paramount requirement.

"Those who have not allowed to change the Muslim Personal Law have done a great disservice to the community…the members of the community have realized the evil consequences of getting a Muslim girl married at a tendered age of 16 or 17 years,” had ruled Justice JB Pardiwala in the order passed then.

In Sarla Mudgal v. Union of India, the Supreme Court had held polygamy can be superseded by the State just as it can prohibit human sacrifice or the practice  of Sati in the interest of   public order. The   personal   law   operates   under   the   authority   of   the   legislation and not under any religion and, therefore, the personal law can always be superseded or supplemented by legislation.

This time around, the Supreme Court has expressly ruled that immunity cannot be granted to a husband having sexual intercourse with his wife in this age group. The Apex Court judgement is a huge step in the direction of criminalising Marital Rape, an issue that no political party wishes to address as it touches upon personal laws and risks hurting community sentiments by its far-reaching repercussions. 

The article also appeared in The Times of India - In Conversation