- Syed Asif
The uncertainty which existed in the matrimonial rape laws was due to the presence of Exception 2 under Section 375 of IPC which provides immunity to the husband who does sexual intercourse or sexual acts with his spouse who is above the age of 15 years, without giving any regard to her willingness or consent. But there existed no such exception under the provisions of the POCSO Act in respect of the offences of penetrative sexual assault and sexual assault.
The Indian Penal Code creates a hypothetical distinction between a minor girl who is a spouse of the accused and one who isn’t, whereas the POCSO Act does not intend to do so. All types of sexual acts or sexual intercourse done by the husband with his spouse will be considered as an offence according to the POCSO Act irrespective of the marital relationship between them.
As the provisions laid by the POCSO Act contradicts with the immunity provided by the Exception 2 of Section 375 of IPC, there arises a question whether or not it would be an offence if the husband commits the act of sexual intercourse with his own spouse who is between the age group of 15 to 18 years.
Section 42-A of POCSO Act – A Non-obstante Clause:
The Criminal Law (Amendment) Act 2013 which substituted a completely new definition of Rape in Section 375, took no step for making changes in the exception regarding the sexual intercourse between husband and a minor wife. But the same Amendment Act inserted Section 42-A in POCSO which is a non-obstante clause. Section 42-A of POCSO clearly defines that the provisions of POCSO shall exercise an over-riding effect on provisions of other laws. The Supreme Court in Indra Kumar Patodia and Anr. v. Reliance Industries Ltd. And Ors1 ., held that “when the non-obstante clause does not refer to any particular provision which is intended to over-ride then neither the whole act is excluded nor it stands alone. Where the non-obstante clause is used, the Court has to find out the extent which was intended by the legislature.”
Both the Indian Penal Code and the POCSO Act recognizes a child as “any person below eighteen years of age”. The move of the Legislature by inserting Section 42-A and substituting new definition for Rape but not changing the language of exception clause of 375 in the same Amendment Act, clearly expresses the intention to give immunity to the husband for sexual intercourse or sexual acts with his spouse who is minor. But, when the Section 42-A is given effect to, the sexual intercourse or sexual acts by the husband with the minor spouse, who is also a child of being incapable of given consent will be considered as Sexual Assault or Penetrative Sexual Assault which are punishable under POCSO Act. The question of whether or not the husband can be charged under Section 376 IPC for the offence of Rape remained uncertain until the intervention of the Supreme Court.
Independent Though v. Union of India2: Made Unheard
In 2017, the petitioner challenged before the Supreme Court that the Exception 2 of Section 375 is violative of Right to Equality and Right to Life which is guaranteed by the Constitution. The divisional bench of Supreme Court in their historical judgement observed that Article 21 of the Constitution gives a fundamental right to a girl to live a life of dignity, integrity and with reproductive choice. The girl child shall not be treated as a commodity having no say over her body and no right to deny sexual intercourse to her husband. The Apex Court also held that the artificial distinction created by the Legislature between a married and an unmarried girl has no rational nexus with the objective i.e. maintaining the sanctity of early marriages, violates the Article 14. The Apex Court considered not to declare Exception 2 of 375 of IPC as unconstitutional as it was not a feasible option but they declared Exception 2 of section 375 of IPC to be read down as “Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape”. However, the court did not concern the rape of a married woman who is above the age of 18 years and kept their concern limited to the marital rape of a girl child.
The Supreme Court’s verdict was acknowledged by the Law Ministry but even the most recent Bill i.e., the Criminal Law (Amendment) Bill 2019 which was introduced in the Rajya Sabha on 12th July 2019, does not proposes to amend the same to clear inconsistency between IPC and POCSO Act regarding the age of Consent. But the decision of the Supreme Court will have prospective effect and the POCSO Act being a special law will have an overriding effect on the IPC. The offenders shall be punished under Section 4, Section 6, Section 8 and Section 10 of the POCSO Act in addition to the Section 376 of the Indian Penal Code and Sections 9 to 11 of the Prohibition of Child Marriage Act, 2006. However, if the Criminal Law (Amendment) Bill, 2019 takes shape of an Act, it being the later Law will prevail over the judgment of Supreme Court and immunity will be given to husband from the charge of Section 376 for committing sexual intercourse with his own spouse.
The author is a 3rd year Student of Lloyd Law College, Greater Noida.
1 AIR 2013 SC 426
2 (2017) 10 SCC 800