GS Paper: GS1-06.Salient features of Indian Society

The Supreme Court has agreed to hear a series of petitions seeking to criminalise marital rape.

What is Marital Rape?

• Marital rape is the act of sexual intercourse with one’s spouse without her consent.
• It is no different manifestation of domestic violence and sexual abuse.
• It is often a chronic form of violence for the victim which takes place within abusive relations.

Status in India

• Historically considered as right of the spouses, this is now widely classified as rape by many societies around the world.
• In India, marital rape is not a criminal offense (as protected under IPC section 375).
• India is one of fifty countries that have not yet outlawed marital rape.

Recent observations by Delhi HC

• Spousal intimacy: In a marriage, conjugal expectation is a two-way street, where “consent is given as a part of spousal intimacy although the will to engage may be absent”.
• Need for written agreement: If every such case is treated as marital rape, then the only way partners in a marriage may survive would be by drawing up a detailed written agreement.
• Burden of evidentiary record: This would lead to creating a detailed evidentiary record of every act of intimacy and/or by inviting a third party to act as a witness.
• Defying marital obligations: The HC said that marriage was accompanied by obligations that the partners had to bear, including conjugal expectations, financial obligations and, finally, duty towards progeny.
• Sexual liberty of spouses: The bench also underlined the signs of injury on a partner need not necessarily mean there had been non-consensual sex as “in the age of sexual liberation”, injuries could be a sign of “passion”.
• Cruelty not rape: Forced sexual intercourse between a husband and wife cannot be treated as rape. At worst, it can be treated as sexual abuse found in Section 3 of the Domestic Violence Act.
• Clash of ego: A wife cannot prescribe a particular punishment that can be imposed on the husband ‘to satisfy her ego’,” the HC said.

Reasons for rebuttal of this concept

• The reluctance to define non-consensual sex between married couples as a crime and to prosecute has been attributed to:

1. Traditional views of marriage
2. Interpretations of religious doctrines
3. Ideas about male and female sexuality
4. Cultural expectations of subordination of a wife to her husband

• It is widely held that a husband cannot be guilty of any sexual act committed by himself upon his lawful wife their on account of their mutual matrimonial consent.

Why it must be a crime?

• Associated physical violence: Rape by a spouse, partner or ex-partner is more often associated with physical violence.
• Mental harassment: There is research showing that marital rape can be more emotionally and physically damaging than rape by a stranger.
• Compulsive relationship: Marital rape may occur as part of an abusive relationship.
• Revengeful nature: Furthermore, marital rape is rarely a one-time event, but a repeated if not frequent occurrence.
• Obligation on women: In the case of marital rape the victim often has no choice but to continue living with their spouse.

Violation of fundamental rights

• Marital rape is considered as a violation of FR guaranteed under Article 14 of the Indian constitution which guarantees the equal protection of laws to all persons.
• By depriving married women of an effective penal remedy against forced sexual intercourse, it violates their right to privacy and bodily integrity, aspects of the right to life and personal liberty under Article 21.

Problems in prosecuting marital rape

• Lack of awareness: A lack of public awareness, as well as reluctance or outright refusal of authorities to prosecute is common globally.
• Gender norms: Additionally, gender norms that place wives in subservient positions to their husbands, make it more difficult for women to recognize such rape.
• Acceptability of the concept: Another problem results from prevailing social norms that exist.

Present regulations in India

• Indian Penal Code criminalizes rape in most cases, although marital rape is not illegal when the woman is over the age of 18.
• However, until 2017, men married to those between 15 and 18 could not be convicted of rape.
• Marital rape of an adult wife, who is unofficially or officially separated, is a criminal offence punishable by 2 to 7 year in prison; it is not dealt by normal rape laws which stipulate the possibility of a death sentence.
• According to the Protection of Women From Domestic Violence Act (2005), other married women subject to such crime by their husband may demand for financial compensation.
• They also have the right to continue to live in their marital household if they wish, or may approach shelter or aid homes.

However, marital rape is still not a criminal offence in this case and is only a misdemeanour.

Arguments against criminalization

• Subjective: It is very subjective and intricate to determine whether consent was acquired or not.
• Prone to Misuse: If marital rape is criminalized without adequate safeguards it could be misused like the current dowry law by the dissatisfied wives to harass and torture their Husbands.
• Burden on Judiciary: It will increase the burden of judiciary which otherwise may serve other more important causes.

Way forward

• Sanctioning marital rape is an acknowledgement of the woman’s right to self-determination (i.e., control) of all matters relating to her body.
• In the absence of any concrete law, the judiciary always finds it difficult to decide the matter of domestic rape in the absence of solid evidence.
• The main purpose of marriage is procreation, and sometimes divorce is sought on the ground of non-consummation of marriage.
• Before giving a final interpretation, the judiciary must balance the rights and duties of both partners.

Central idea: The Centre in the Supreme Court expressed its disagreement towards same-sex marriage, citing traditional beliefs and values.

Here are the main points of the affidavit:

• Heterosexual marriage has been the norm throughout history and is “foundational to both the existence and continuance of the state.”
• Marriage in India is regarded as a “holy union,” a “sacrament,” and a “sanskar,” and is dependent on customs, rituals, practices, cultural ethos, and societal values.
• Any “deviation” from the “statutorily, religiously and socially” accepted norm in “human relationship” can only happen through the legislature and not the Supreme Court.

Basis of Centre’s opposition

• The 2018 Navtej Singh Johar judgment decriminalised homosexuality, but it did not mention/legitimise same-sex marriage.
• Same-sex marriage cannot be compared to a man and woman living as a family with children born out of the union.
• Registration of same-sex marriage would result in a violation of existing personal as well as codified law provisions.
• There is a “compelling interest” for the society and the state to limit recognition to heterosexual marriages only.

Reasons behind centre’s opposition

• Legal revamp required: The registration of marriage of same-sex persons also results in a violation of existing personal as well as codified law provisions — such as ‘degrees of prohibited relationship’; ‘conditions of marriage’; ‘ceremonial and ritual requirements’ under the personal laws governing the individuals”.
• Definition of spouse: In a same-sex marriage, it is neither possible nor feasible to term one as ‘husband’ and the other as ‘wife’ in the context of the legislative scheme of various personal laws.
• Against cultural norms:  The social order in our Country is religion based which views procreation as an obligation for the execution of various religious ceremonies.
• Property and other civil rights: Property rights post marriage is a much-contested issues in India. Same sex marriage will not create any immunity for the law but increase complex interpretations.

Issues with such marriages

The issue of homosexual conduct to this fore in recent legal and political debate for main reasons, which are as follows:

• Morality: This has brought with it a change in social attitudes, so that the stigma attached to homosexuality has to a greater extent disappeared.
• Rising activism: Campaigns for lesbian and gay rights taken on an increasingly radical character, arguing for an end to all forms of discrimination against homosexuality.
• Religious sanctions: Same sex acts are punishable by death in Arab countries. No religion openly embraces same sex marriage. More or less, they are considered un-natural everywhere.
• Social stigma:  Apart from the harsh legal scenario, homosexuals face social stigma as well. Same sex marriages are still unimaginable as any instance of sexual relations between a couple of the same sex draws hatred and disgust.
• Patriarchy: It must not be forgotten that the Indian society is patriarchal in nature and the fact that certain women and men have different choices, which is not sanctioned by the ‘order’, frightens them in a way.
• Burden of collectivity: Our society is very community oriented and individualism is not encouraged in the least, any expression of homosexuality is seen as an attempt to renounce tradition and promote individualism.

Arguments in favor

• Pursuit of happiness: Homosexuality is not an offence, it is just a way of pursuit of happiness, a way to achieve sexual happiness or desire.
• Right to privacy: The fundamental right to liberty (under Article-21) prohibits the state from interfering with the private personal activities of the individual.
• Arbitrariness: Infringement of, the right to equal protection before law requires the determination of whether there is a rational and objective basis to the classification introduced.
• Issues with definition: Section-377 assumes that natural sexual act is that which is performed for procreation. Hence, it thereby labels all forms of non-procreative sexual act as unnatural.
• Discrimination: Section-377 discriminates on the basis of sexual orientation which is forbidden under Article-15 of the Constitution. Article-15 prohibits discrimination on several grounds, which includes Sex.
• Human rights: The universal law of Human Rights states that social norms, tradition, custom or culture cannot be used to curb a person from asserting his fundamental and constitutional rights.
• Many countries recognizing: According to global think tank Council of Foreign Relations, same sex marriages are legal in at least 30 countries, including the United States, Australia, Canada and France.

Way forward

• Dissociating from religion: Such marriages are forbidden in almost every religion. Hence no single religion should be considered a hindrance in creating a legal sanction.
• Doing away with discrimination: The same-sex community needs an anti-discrimination law that empowers them to build productive lives and relationships irrespective of gender identity.
• Letting the society evolve: The society has to imbibe the doctrine of progressive realization of rights and it cannot be forcibly convinced by law.
• Creating awareness: Certainly this is not an overnight phenomenon. We are society where practice of Sati and Nikah halala was considered a religious order.

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The Supreme Court has rejected a petition seeking a uniform minimum age of marriage for men and women stating that the matter is within the domain of the legislature and not the judiciary.

Central idea: The minimum age of marriage, especially for women, has been a contentious issue.  It was evolved in the face of much resistance from religious and social conservatives.

What laws govern marriage age in India?

Following laws prescribe/mention 18 and 21 years as the minimum age of consent for marriage for women and men respectively:

1. Special Marriage Act, 1954: It allows people from two different faith/religious backgrounds to come together in the bond of marriage
2. Sarda Act, 1978: Named after its sponsor Harbilas Sarda, a judge and a member of Arya Samaj, was eventually amended in 1978 to prescribe 18 and 21 years as the age of marriage for a woman and a man, respectively.
3. Prohibition of Child Marriage Act, 2006: It provides that the minimum age of marriage is 21 years in case of males, and 18 years in case of females.

Evolution of the idea: Age of Consent

• The IPC enacted in 1860 criminalised sexual intercourse with a girl below the age of 10.
• The provision of rape was amended in 1927 through The Age of Consent Bill, 1927, which declared that marriage with a girl under 12 would be invalid.
• The law faced opposition from leaders including Lokmanya Tilak, who saw the British intervention as an attack to create rift within family intuitions in the name of equal rights.
• A legal framework for the age of consent for marriage in India only began in the 1880s.

Central idea: Attainment of Majority

• The minimum age of marriage is distinct from the age of majority which is gender-neutral.
• An individual attains the age of majority at 18 as per the Indian Majority Act, 1875.
• The law prescribes a minimum age of marriage to essentially outlaw child marriages and prevents the abuse of minors.

How this confers ‘Unequal Treatment’?

• Articles 14 and 21 of the Constitution guarantee the right to equality and the right to live with dignity.
• They are clearly violated by having different legal age for men and women to marry, argue activists.

Supreme Court rulings supportive to this

• NALSA vs. Union of India, 2014: The Supreme Court while recognizing transgenders as the third gender said that justice is delivered with the “assumption that humans have equal value and should, therefore, be treated as equal, as well as by equal laws.”
• Joseph Shine v Union of India, 2019: The Court decriminalized adultery and said that “a law that treats women differently based on gender stereotypes is an affront to women’s dignity.”

Contention over different legal standards

• No rationale behind: There is no reasoning in the law for having different legal standards of age for men and women to marry.
• More of religious decree: The laws are a codification of custom and religious practices.
• Stereotype for male dominance: The Law Commission consultation paper has argued that having different legal standards “contributes to the stereotype that wives must be younger than their husbands”.
• Promotes premature marriage of girl child: Women’s rights activists have argued that the law also perpetuates the stereotype that women are more mature than men and therefore, can be allowed to marry sooner.
• Motherhood complexities: An early age of marriage, and consequent early pregnancies, also have impacts on nutritional levels of mothers and their children, and their overall health and mental wellbeing.
• Other factors: Early marriage age has latent outcomes such as early dropouts from school, deprivation from higher education etc.

Why is the law being relooked at?

• Prevalence of child marriage: Despite laws mandating minimum age and criminalizing sexual intercourse with a minor, child marriages are very prevalent in the country.
• Bring gender-neutrality: From bringing in gender-neutrality to reduce the risks of early pregnancy among women, there are many arguments in favour of increasing the minimum age of marriage of women.
• Protection from abuse: This will essentially outlaw premature girls marriages and prevent the abuse of minors.
• Women empowerment: The decision would empower women who are cut off from access to education and livelihood due to an early marriage.

Policy measures in this regard: Jaya Jaitly Committee

• In June 2020, the Ministry of WCD set up a task force to look into the correlation between the age of marriage with issues of women’s nutrition, prevalence of anaemia, IMR, MMR and other social indices.
• The committee was to look at the feasibility of increasing the age of marriage and its implication on women and child health, as well as how to increase access to education for women.

Key recommendations

• The committee has recommended the age of marriage be increased to 21 years, on the basis of feedback they received from young adults from 16 universities across the country.
• The committee also asked the government to look into increasing access to schools and colleges for girls, including their transportation to these institutes from far-flung areas.
• Skill and business training has also been recommended, as has sex education in schools.
• The committee said these deliveries must come first, as, unless they are implemented and women are empowered, the law will not be as effective.

Criticism of the move to raise the legal ages

• Promote illegal marriages: Such legislation would push a large portion of the population into illegal marriages leading to non-institutional births.
• Ineffectiveness of existing laws: Decrease in child marriages has not been because of the existing law but because of an increase in girls’ education and employment opportunities.
• Unnecessary coercion: The law would end up being coercive, and in particular negatively impact marginalized communities, such as the Scheduled Caste and Scheduled Tribes, making them law-breakers.

Way forward

• Enacting Legislation: Establishing a Uniform Minimum Age of Marriage for Both Men and Women
• Effective Implementation and Enforcement: Preventing Child Marriages and Gender-Based Discrimination
• Addressing Root Causes: Improving Access to Education and Healthcare, Promoting Women’s Participation, and Reducing Gender-Based Violence and Discrimination
• Coordinated Multi-Sectoral Approach: Involving the Government, Civil Society and religious scholars.

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Central idea: An actress recently held her interfaith-marriage under the Special Marriage Act, 1954.

What is the Special Marriage Act?

• The Special Marriage Act of 1954 (SMA) was passed by the Parliament on October 9, 1954.
• It governs a civil marriage where the state sanctions the marriage rather than the religion.
• The minimum age to get married under the SMA is 21 years for males and 18 years for females.

Why was it enacted?

Ans. Interfaith/ Inter-caste Marriages

• Issues of personal law such as marriage, divorce, adoption are governed by religious laws that are codified.
• These laws, such as the Muslim Marriage Act, 1954, and the Hindu Marriage Act, 1955, require either spouse to convert to the religion of the other before marriage.
• However, the SMA enables marriage between inter-faith or inter-caste couples without them giving up their religious identity or resorting to conversion.

Why is it ‘Special’?

• Detachment from the family: Once married as per the secular law, under Section 19 of the Act, any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jain religion shall be deemed to affect their severance from the family.
• Losing inherited property: This would affect rights, including the right to inheritance, of the persons choosing to marry under the SMA.

Who can get married under the Special Marriage Act?

• The applicability of the Act extends to the people of all faiths, including Hindus, Muslims, Sikhs, Christians, Sikhs, Jains, and Buddhists, across India.
• Some customary restrictions such as parties not being within degrees of a prohibited relationship still apply to couples under SMA.
• In 1952, when the Bill was proposed, the requirement of monogamy was considered radical.
• Section 4 of the SMA requires that at the time of marriage, “neither party has a spouse living” or is “incapable of giving a valid consent to it in consequence of unsoundness of mind”.

What is the procedure for a civil marriage?

• As per Section 5 of the Act, the parties to the marriage are required to give a notice, in writing, to a “Marriage Officer” of the district in which at least one of the parties has resided for at least 30 days immediately preceding the notice.
• Before the marriage is solemnized, the parties and three witnesses are required to sign a declaration form before the Marriage Officer.
• Once the declaration is accepted, the parties will be given a “Certificate of marriage” which is essentially proof of the marriage.

Furore over such marriages

Ans. Religious conversion has emerged as the practical way to cohabit as a couple, in a country where neither the inter-faith, inter-caste nor the live-in couples can earn societal approval.

• As per some Personal laws, in order to get married conversion of religion to get equalized is the only way.
• There are cases of being allegedly lured and honey-trapped by men and those girls now seeking their help to free themselves.
• Interfaith marriages these days are believed to be a forced conversion of the women spouses.
• Fundamentalists’ claims that men of a particular religion are trained on the intricacies of religious doctrine to allure other religion women for marriage in an attempt to finish off her religion.

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