Plight of women and the Constitutionality
The recent Supreme court verdict on Marital Rape
In the recent verdict supreme court ruled that "sex with minor wife is rape". In this light let us look at the various provision made in the Indian constitution which validates this decision. Also various other issues that the apex court & the government should undertake as this is not the end. We will also look at the second radical view in the light of this decision.
In the landmark judgement supreme court criminalised the sex with minor saying that the exception given in the IPC section 375 is arbitrary and violative of the constitution. The exception says-Intercourse or sexual acts by a man with his wife, not below 15 years, is not rape. Court ruled that the exception given is contrary to the very philosophy or provision enshrined in our constitution and the bodily integrity of girl child too. The judgement is prospective in nature.
The Supreme Court set aside the State's argument that the marriage presumes consent. State says it is protected by customary or personal law that provides husband and the child bride impunity from the Rape Law. Supreme court's decision makes it clear that the sexual consent can only be given by an adult woman of 18 years. In the other words consent to sex can be presumed in the case of under-age marriage nor it can be imposed by the parents of the minor. Sexual consent is defined as an adult category.
This is a field of legal pluralism, where pre-marital sex rather than rape of young girl by their husband is seen as a social problem. This includes child-wives hitherto protected by customs, since the Indian state acceded in 1992 to the UN General Assemby's Convention on the Right of the Child.
The Supreme Court rightly holds that the girl child must not be deprived of her right of Choice. The right to choose, which is free and unfettered, includes freedom form parental pressure to marry early, freedom from forced marriage, freedom of choice of sexual orientation and freedom to find self-fulfillment through study, work, profession, vocation or talent.
Constitutionality
Violative of Article 14 and 15, 19 and 21. Article 14 & 15 which prohibits discrimination without an intelligible basis, Article 19, which should guarantee the freedom to express or withhold sexual desire in all the consensual contexts, and Article 21, which guarantees right to life and personal liberty.
Second View
The discourse of assault of women in the name of marital rape (minor/major) should not off track the debate of other forms of domestic violence. The Domestic violence is not only driven by the legality of sexual consent. There may be other reasons attached to it. Indian society is riddled with many such incidences and domestic violence is still pervasive. Hence, the matter of discussion which follows the the protection of Rights of women and its stature in society be discussed in totality.
Comment on following query:-
1. How the POCSO is in conflict with IPC on this matter?
In the landmark judgement supreme court criminalised the sex with minor saying that the exception given in the IPC section 375 is arbitrary and violative of the constitution. The exception says-Intercourse or sexual acts by a man with his wife, not below 15 years, is not rape. Court ruled that the exception given is contrary to the very philosophy or provision enshrined in our constitution and the bodily integrity of girl child too. The judgement is prospective in nature.
The Supreme Court set aside the State's argument that the marriage presumes consent. State says it is protected by customary or personal law that provides husband and the child bride impunity from the Rape Law. Supreme court's decision makes it clear that the sexual consent can only be given by an adult woman of 18 years. In the other words consent to sex can be presumed in the case of under-age marriage nor it can be imposed by the parents of the minor. Sexual consent is defined as an adult category.
This is a field of legal pluralism, where pre-marital sex rather than rape of young girl by their husband is seen as a social problem. This includes child-wives hitherto protected by customs, since the Indian state acceded in 1992 to the UN General Assemby's Convention on the Right of the Child.
The Supreme Court rightly holds that the girl child must not be deprived of her right of Choice. The right to choose, which is free and unfettered, includes freedom form parental pressure to marry early, freedom from forced marriage, freedom of choice of sexual orientation and freedom to find self-fulfillment through study, work, profession, vocation or talent.
Constitutionality
Violative of Article 14 and 15, 19 and 21. Article 14 & 15 which prohibits discrimination without an intelligible basis, Article 19, which should guarantee the freedom to express or withhold sexual desire in all the consensual contexts, and Article 21, which guarantees right to life and personal liberty.
Second View
The discourse of assault of women in the name of marital rape (minor/major) should not off track the debate of other forms of domestic violence. The Domestic violence is not only driven by the legality of sexual consent. There may be other reasons attached to it. Indian society is riddled with many such incidences and domestic violence is still pervasive. Hence, the matter of discussion which follows the the protection of Rights of women and its stature in society be discussed in totality.
Comment on following query:-
1. How the POCSO is in conflict with IPC on this matter?
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