The Supreme Court on Friday observed a curious anomaly in the law relating to marital rape. While the law doesn’t criminalise marital rape, it criminalises marital molestation.
The bench observed this while noting that the issue of the legality of marital rape of adult women was still pending in court, and it wouldn’t look at this aspect.
The bench quoted an earlier judgement to say that while Article 21 gives a fundamental right to a girl child to live a life of dignity, an early marriage takes away the self-esteem and confidence of a girl child and subjects her, in a sense, to sexual abuse.
Under no circumstances can it be said that such a girl child lives a life of dignity. The right of a girl child to maintain her bodily integrity is effectively destroyed by a traditional practice sanctified by the Indian Penal Code (IPC).
Her husband, for the purposes of Section 375 IPC, effectively has full control over her body and can subject her to sexual intercourse without her consent or without her willingness, since such an activity would not be rape.
Anomalously, although her husband can rape her, he cannot molest her for if he does so he could be punished under the IPC provisions. This was recognised by the Law Commission of India in its 172nd Report but was not commented upon.
It appears therefore that different and irrational standards have been laid down for the treatment of the girl child by her husband and it is necessary to harmonise the provisions of various statutes and also harmonise different provisions of IPC inter se, the bench said.