What does IPC say
Rape is defined in Section-375 of IPC.
- The law says that if a man has sexual intercourse with a woman against her will, it amounts to rape.
- If the age of the woman (unmarried) is less than 18 years, then her consent does not matter. That is, a relationship made with the consent of a girl below 18 years of age will also be rape.
- If the girl is below 15 years of age and her husband has sex with her then it will be rape.
- If the age of the wife is more than 15 years, then it will not be considered as rape in such a case. Marital rape has been kept in the exception.
Meanwhile, the Supreme Court in a judgment on 11 October 2017 struck down the above exception of 15 years. The Supreme Court said that if the wife is a minor, between 15 years and 18 years of age, and has sex with her against her will, then the wife can file a case of rape against her husband. According to the judgement, if the minor wife makes a complaint within one year of the incident, it will be considered a case of rape.
Provisions of the Indian Judicial Code
Rape has been defined in section 63 of the new law.
- Under this, it has been said that if a person forcibly makes a relationship with a woman or puts any object in her private part, then it will be rape.
- In rape of a minor or in gang rape, the punishment can be death sentence or life imprisonment.
- If a girl under 18 years of age has sex with or without her consent, it will be rape. The consent of a girl below 18 years of age does not count.
- If a man has sex with his wife and the age of the wife is not less than 18 years, then it will not be rape. That is, having a relationship with a wife below the age of 18 is considered rape.
Advocate Gyanant Singh of the Supreme Court says that if we look at the judgment of the Supreme Court, then the Supreme Court had abolished the exception in the IPC for the wife between the age of 15 to 18 years, but it The matter was left to the married minor that if she wishes, she can file a rape complaint against her husband within a year. If she does not complain, then the case of marital rape is not made out.
what about those marriages
The law says that the marriageable age of a girl is 18 years and that of a boy is 21 years. But in the Hindu Marriage Act, the marriage of a girl above 15 years of age is not invalid but it is eligible to be declared invalid. Even among Muslims, the marriage of a girl who has attained puberty (physically adult) i.e. a girl above 15 years of age is valid. In this light, when IPC was made, the case of wife above 15 years of age was considered as an exception to marital rape. It was also said in the judgment of the Supreme Court that if there is a relation with a minor wife, then that woman can be a complainant. Here also the minor wife was given the right to complain.
But now in the new law, when the relationship with a minor wife is rape, then there will be a provision to register cases in all such cases. Such cases will come under the category of cognizable offences, which means that the complainant can be anyone and the police can register a case on their own if they get the information.
The question is, what will happen to such marriages when the Hindu Marriage Act and the Muslim Personal Law still do not invalidate the marriage of a girl above 15 years of age?
- In all such marriages, the wife is below 18 years of age, so will these cases come under the category of rape of a minor?
- Will only the girl have the right to complain in such rape or can the police also be the complainant in case of cognizable offence? Keep in mind, rape cases are considered crimes against the society.
Change in personal law
It is clear that if the relationship with a minor wife is brought under the ambit of crime, then it is necessary to declare marriage below the age of 18 years invalid by changing the provisions of the Hindu Marriage Act and the Muslim Personal Law. As long as such marriages are recognized by personal law, they will continue to happen and this matter will continue to get entangled in legal disputes.