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Love means an intense feeling of affection and
therefore, it is abstract. However, there are ways to express one's love
towards another. Is sexual intercourse the ultimate
way of expressing one's love to another? If yes, then why 'having sex' and 'making love' are different from each other. The former only
fulfills physical urges while the latter interweaves two souls.
Ancient past says that every man is allowed to
have sex with a woman who has the potential of giving birth. Even if that woman
is married but her husband is not with her, all the men are allowed to have sex
with her. The rationale behind a woman 'open
for all men' was— a woman, by not giving birth, shall not waste her
fertility period. However, the present prescribes that 'people' should have sexual intercourse only
after getting married, and it perhaps sounds more liberal and civilized, firstly,
for its nondiscrimination between a man and a woman as it uses a gender-neutral
word 'people' and secondly the 'open for all men scheme' is now been buried.
Now, one can argue about live-in relationships which some sarcastically
identify as hire and purchase agreement as they say that— firstly, two people
hire each other to understand their togetherness’s merits and demerits
thereafter if they find each other suitable then only they will purchase each
other by marrying.
Does a legal marriage confer a spouse the 'right to compel' the other spouse for having sexual intercourse or does it merely allow a spouse the 'right to pursue' the other spouse for having sexual intercourse?
Popular belief is that a husband has the ‘right to compel’ his wife for sex
because of the exception to Section 375 of IPC that is— “Sexual Intercourse by a man with his own wife, the wife not being under
15 years of age, is not a rape”. The exception may give rise to a question
that how a woman who is below 18 years and therefore a child, under The Prohibition of Child Marriage Act, 2006 (hereafter
‘said Act’ and amended till date) can legitimately marry in India. We must
observe that Section 3 of the said Act can only make a 'child marriage' invalid
if any of the spouses who was a child at the time of marriage institutes a case
before the court. However, Section 12 of the said Act does make a child marriage invalid
‘without anyone instituting a court case’ but only in some specified
circumstances, those essentially in a nutshell are immoral tactics used for
getting the child married. Therefore, child marriage when gets compelled by
immorality is ‘invalid without court’s
interference’ but when gets persuaded can be made ‘invalid only by court’s interference’. Hence, child marriage as
such is not prohibited in India.
Why is the husband not having the 'right to compel'?
In the said exception, the word ‘forced’ before ‘sexual intercourse’ has not been used but the people are adding the
word 'forced' to propagate that ‘forced sexual intercourse’, by that said
exception, is allowed for a husband once his wife attains 15 years of age or is above 15. This 'forced' proposition is
wrong because The Protection of Women from Domestic Violence Act, 2005 (hereafter ‘D.V. Act’) protects women
(whether married or not) from ‘forced
sexual intercourse’ by defining
“physical abuse” and “sexual abuse” as the pain inflicted to, and any act that
undignified, the life and limb of a woman. However, this act does not penalize
the abuser for abusing a woman rather it protects a woman from abuse by a
protection order (Section 18 of the D.V. Act), although if such protection
order is violated by the abuser then this act can penalize the abuser (Section31 of the D.V. Act). Furthermore, Section 498A of IPC penalizes the abuser for
his/her sexual violence against the aggrieved.
Therefore, every woman (whether unmarried or
married) irrespective of age and religion is protected from ‘forced sexual intercourse’ under the law
of this land. Therefore if the women are protected, even from their husband,
from ‘forced sexual intercourse’ and
the corollary is that the husbands are not having the ‘right to compel’ then what does that exception say— it merely,
although wrongly, reduces the age of consent for married girls 15 years from
16/18 years? One of the examples that
Section 375 identifies as rape is this— ‘a
man is said to commit rape who has sexual intercourse with a woman with or
without her consent when she is under 16 years of age’. Therefore, under
this clause, the age of consent for a woman is 16 however The Criminal Amendment Act of 2013 has made it 18. The above-said exception mandates the age
of consent for a married woman as 15. Therefore, one can argue that to set the
age of consent for married women on a different footing from the unmarried woman, the said exception has
been included. Henceforth, the question
arises— why the age of consent for unmarried women is 16/18 and that of married
women is 15? Is it that a woman after getting married instantaneously becomes
mature? Or is it for the husbands' hurriedness of having sexual intercourse
with their wives that the age of consent for married women is reduced? The
answers to these questions are kept open for future discussions.
Right to pursue, Right to be excited, and Right to be violent
No doubt that when two people get married their
marriage gives birth to multifarious mutual expectations and sexual intercourse
is of those expectations. The courts, time and again, have held that sexless
marriage is a ground for seeking divorce therefore a spouse expecting sexual
intercourse from another spouse is neither bad in law nor in morality.
‘Right to
pursue’ is a right that both spouses are having. But the ‘right to get excited’ for having sexual
intercourse and ‘right to be violent’
on the rejection to have sexual intercourse is different from one another, and
for the latter, there is the law of the land punishing the same. The seminal
question is— why is the age of consent different for a married woman than that
of an unmarried woman? The sanction of marital rape by that said exception is a
misconception based on sui generis
misinterpretation.
There are arguments saying— “Article 14 allows
positive discrimination between equal and unequal but not between an equal and
equal and as unmarried women are different from married women, hence they are
not equal to the latter and therefore, different age of consent is legally
sustainable”. But such an argument is wrong because a woman does not cease to be a woman after getting married.
Love, I feel, cannot be forced to get developed, however, nourished to get developed. If you say ‘NO’ then I may ask ‘WHY’ and if you reply with nothing, just nothing, I shall wait, curiously wait, not for the day of our blending but why have you said 'NO'.
Edited by Siddhant Sharma
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