Why is a man who has raped his wife treated leniently even though rape laws for others lay down stringent punishment?

Even as Delhi High Court is yet to take a stand on the issue of contradictory child marriage law making an underaged pregnant teenager languish in a Nari Niketan for months, the girl’s father is waiting for the court to hear his petition against some archaic provisions under Section 375 (definition of rape) and 376 (punishment for rape) of the IPC that provide for lesser punishment for marital rape of a minor.

Mahadev, father of Anamika (name changed), had filed a writ petition in 2008 seeking striking down of the sub-sections of Section 375 and 376 which do not consider rape of a woman by her husband as a crime. He had also challenged Section 6 (C) of Hindu Minority and Guardian Act and Section 198(6) of CrPC stating they were unconstitutional and violative of his and his daughter’s fundamental rights. which will hear the matter on Friday. On earlier hearings, the two-judge bench had decided to wait for the full bench order on the child marriage laws before dealing with the issue. However, with the passing time, the HC also issued notice to the union of India, which also failed to file a reply on three occasions. On the last hearing, the Union of India finally came up with a reply. The government contended that the law commission of India had already examined the matter in its 172nd report and recommended for exhaustive changes in the rape laws. On Mahadev’s contention, the commission rubbished it by saying that excessive interference in the marital life would lead to discord in the social harmony in society.

Counsel Arvind Jain said that instead of relying on law commissions 205th report on the basis of which PCMA was amended, UOI has taken notes from the old 172nd report. In the 205th report, the consent age has been raised till 18 and exception to section 375 has also been recommended to be deleted.

THE CURRENT PROVISIONS

Section 375 of the IPC states that a man has committed ‘rape’ If he has sexual intercourse with a woman without her consent

With or without her consent when she is under 16 years of age Exception Sexual intercourse by a man with his wife who is not under 15 years of age

PUNISHMENT

Not less than 7 years but which may be for life or for a term which may extend to 10 years along with fine

Exception If the victim is wife of the accused and is not under 12 years of age, he will be punished with imprisonment of not more than two years or fine or with both

Feeling aggrieved as the provisions under the changed Prevention of Child Marriage Act (PCMA) led to ambiguities as the government failed to amend other related laws, Mahadev had challenged the legality of an exception provided in Section 375 in keeping with the old notion that all child marriages were not necessarily void. The exception grants immunity against a rape charge to husbands of underaged girls between 15 and 18. In the petition filed through counsel Arvind Jain, it was stated that under Section 376, a man raping his own wife was no offence, whereas, if the wife is between 12-15 years of age, the husband is entitled to a special discount and will only be punished for maximum of two years punishment. Mahadev asked the HC to strike down the general exception as under the new PCMA, a child marriage based on kidnapping was invalid from the very beginning.

The matter has now been referred to a full bench
Source:- The Times of India 21 August 2009 P.7 Delhi
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