The Supreme Court recently struck down an exception in the rape law in the process criminalising sexual assault by husbands against their wives aged between 15 and 18. This welcome judgment harmonises the IPC sections on rape with provisions in the Juvenile Justice Act as well as the Protection of Children from Sexual Offences Act. However, there are three issues that arise from this judgment.
The first is child marriage. The court rightly pointed out the ambivalence of Parliament in enacting a law criminalising child marriage but also allowing for it by making it simply voidable. The court also pointed out that the Centre’s argument (against the reading down of the exception) on the grounds of tradition and protection of the institution of marriage do not hold water. The court suggested that other states follow Karnataka’s example in making child marriage void ab initio.
While the Centre must amend the Prohibition of Child Marriage Act, states ought to follow Karnataka’s example. Second, the judgment appears to lay the groundwork and provide arguments towards finally criminalising marital rape, even pointing out that the view of women as property of their husbands has changed. Consent to marriage is not lifelong consent to sex at any time. The court’s judgment already shows the untenable nature of the arguments against criminalising marital rape, though it restricted itself to commenting on the 15 to 18 years exception.
Third, the judgment reinforces 18 as the age of consent in the process doubling down on POCSO, criminalising all underage consensual sex. This is problematic, especially as enough documentation exists that the rape law and POCSO are used by families of young women to target their boyfriends, acting as another control on female sexuality. That youngsters experiment sexually is a universal truth. The law and society must consider ways to protect youngsters without making them criminals for engaging in natural, consensual, age-appropriate explorations.