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Before deciding on marital rape, the court will have to deal with ‘age of consent’; Here is why

Striking a direct conflict with the Prohibition of Child Marriage Act, IPC implies that a girl can get married at the age of 15, whereas definition of a child under the Child Marriage Act has been stated as 18.

marital rape consent, age of consent marital rape, age of consent ipc, age of consent indian penal code, consent ipc, definition of child, definition of child posco, posco, marital rape supreme court, marital rape right to privacy, indian express news Consent, expressed or implied, is a necessity, whether it be rape or marital rape. In either case, if any sexual act is done without consent, it should constitute an offence.

In the 19th century, when child marriage was the norm across India, the age of consent was 10 years under the Indian Penal Code, 1860. The elevation of this age of consent has moved at a snail’s pace since then.

The first change in the age was brought in 1891 after a girl of 10 died during sexual intercourse. Phulomoni Dasi, 10, was married to a 35-year-old man and was subject to sexual intercourse every night. One night, neighbours came rushing hearing her shrieks and found the girl lying dead with her husband drenched in her blood.

After the court ruled out rape from the charges filed against her husband, there was an outcry for raising the age of consent. Soon, Viceroy Lord Lansdowne introduced a bill which was later passed as the ‘Age of Consent Act, 1891’. The Act criminalised sexual intercourse with girls below the age of 12.

In a marriage, a blanket consent is presumed between a husband and a wife. Justice Wilson in the Phulomoni case of Queen-Empress vs Hurree Mohun Mythee said: “But it by no means follows that because the law of rape does not apply as between husband and wife, if the wife has attained the age of ten years, that the law regards a wife over ten years of age as a thing made over to be the absolute property of her husband, or as a person outside the protection of the criminal law.”

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As India moved towards modernisation, there were renewed demands for raising the age of consent. Now, the Protection of Children from Sexual Offences Act, 2012 (POSCO), the Immoral Traffic (Prevention) Act, 1956 and the Prohibition of Child Marriage Act, 2006 have defined a child as a person under the age of 18. This also defines the age of consent in India at the moment. But even as these statutes imply the age of consent, they came only over a century after the 1860 law was amended in 1891.

But the law is not that simple. The Indian Penal Code, the statute most often used in criminal offences, states ‘age of consent’ as 16 years and 15 years for a married girl. Striking a direct conflict with the Prohibition of Child Marriage Act, IPC implies that a girl can get married at the age of 15, whereas definition of a child under the Child Marriage Act has been stated as 18. And the statute remains silent on the age of a man in the provision.

marital rape consent, age of consent marital rape, age of consent ipc, age of consent indian penal code, consent ipc, definition of child, definition of child posco, posco, marital rape supreme court, marital rape right to privacy, indian express news In a marriage, a blanket consent is presumed between a husband and a wife.

Since the Age of Consent Act has not been revised since 1891, the Section 90 of the IPC still defines consent of a child as consent given by a person above the age of 12. The statute therefore defines a child as below 12 years and contradicts with the definition provided by POSCO and Prohibition of Child Marriage Act. This leads to a conflict in law and to this date there is technically no law protecting a person below 18 years from sexual offences. Pushing the age of consent to at least 16 is essential to prevent misuse of the law.

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Consent, expressed or implied, is a necessity, whether it be rape or marital rape. In either case, if any sexual act is done without consent, it should constitute an offence. Instead our law defines the ‘age of consent’ and a ‘child’, when the term ‘consent’ sits veiled around the corner. “If rape is the violation of human rights, then it is equally a violation whether committed by her husband or a stranger,” Indira Jaising, the then ASG, said in her keynote speech to Justice Verma Committee in 2013. This is why it is crucial how the definition of consent is structured.

In the 15-19 age bracket, 4.5 per cent women reported sexual violence and 13.1 per cent of the married women underwent spousal sexual violence according to the third report of the National Family Health Survey (NFHS), 2005-06. Read more: Centre would do well to check NFHS data on marital rape data However, the data reported is also not the full story since there is very little reporting of marital rape, at least in comparison to rape by a stranger.

But the Supreme Court on August 10 reiterated an exception listed down in Section 375 of the Indian Penal Code, 1860 (IPC) pertaining to rape and stated that physical intercourse within marriage with a girl above 15 cannot be termed as rape, “with or without” consent. This exception conflicts with Right to Equality (Article 14) as well as Right to Life and Liberty (Article 21) promised in the Indian Constitution.

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Before criminalising marital rape, the Parliament and the judiciary would have to recognise the same as a crime and bring uniformity to the term ‘consent’ and ‘age of consent’ across all laws.

First published on: 01-09-2017 at 06:46:48 pm
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