The union of two individuals of opposite gender is celebrated across the world. The hope is that stakeholders in the marriage would take care of each other for the rest of their life. In India, the survival of a marriage may not always depend on whether the husband and wife are on the same page. Parents or relatives may either strengthen or weaken the bonding between the husband and wife. The stand-off sows the seed of friction in the bedroom. Denial of sex and forced sex are possibilities that cannot be ruled out. In legal terminology, forced sex in marriage is ‘marital rape’. As there is no doubt girls aged below 18 are minors, the question of marriage does not arise at all. True, Section 375 has an exception clause that says ‘sexual acts between a man and wife with the wife being not less than 15 years old, is not rape’. But the Supreme Court may give importance to a minor’s age before arriving at a verdict on whether or not a sexual act becomes an assault involving a wife, who is below 18 and above 15. Nobel laureate Kailash Satyarthi rightly highlighted the inconsistency last week as Section 5 (n) of Protection of Children from Sexual Offences Act (Pocso) is clear that sexual intercourse with a child under 18 years is “aggravated penetrative sexual assault” that can invite penal consequences.
Women have raised their voice against widespread marital rape in the country. The Justice JS Verma Committee said in 2013 that marriage or any intimate relationship between a man and a woman cannot be ‘a valid defence’ against crimes such as rape. The three-member panel, constituted to recommend amendments to criminal laws in the wake of the national outrage over the 2012 Nirbhaya incident in Delhi, insisted the notion that the wife becomes the property of husband after marriage was outdated. However, in 2015, the Supreme Court rejected a woman’s plea that her husband sexually assaulted her several times and refused to declare marital rape a criminal offence. Citing the plea as a “personal cause and not a public cause”, the apex court said it was not possible to order a change in the law for one person. If marital rape is not a criminal offence, how can sex denial to husband be a ground for divorce? The Delhi High Court granted a decree of divorce to a man, who complained that his wife denied him sex for four-and-a-half years although the woman had denied the allegations in the trial court earlier. Counselling by experts may have been a suitable alternative than annulling the marriage in a hurry.