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Sex with minor wife amounts to rape: SC

13 October, 2017, 00:56 | Author: Kristen Ingram
  • Supreme Court

The court had agreed with NGO Independent Thought, which filed the petition challenging the exception, on how when sexual intercourse with a minor aged below 18 with or without her consent amounts to rape under IPC, it is not so once she is married.

The bench said when the age of consent was raised to 18 years, the minimum age of marriage was also 18 and, therefore, fixing a lower age under Exception 2 to Section 375 IPC was totally irrational.

Given the prevalence of child marriage in this country, it is doubtful whether it is possible - or even desirable - to implement the statutory rape law uniformly in the context of marriages.

Though marital rape is not a crime in India, the provision contradicted the age of consent in both the PCMA and the Protection of Children from Sexual Offences Act (POCSO).

It is weird how the court has raised an objection to only criminalise rape with a wife who is a minor but on the other hand, gave men a free pass to rape their wives just because they were married off at the legal age. What, for instance, does this mean for those married under Muslim personal law, which permits girls below 18 to be married?

A two-judge Bench unanimously chose to "read down" the above provision by inserting 18 years in place of 15 years, to make the Exception to IPC Section 375 read as, "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape".

An estimated 47% of girls in the country are married before they turn 18.

Expressing dismay over an alarming figure of 23 million child brides in the country, the Supreme Court has said one out of every five marriages violated laws prohibiting child marriage.

The Supreme Court on Wednesday, October 11, ruled that sexual intercourse with a minor wife is a criminal offense and will be considered. It was also argued that if one of the parties to the act is a conservative person and is not exposed to the various ways and systems of the world, mere reluctance would also be sufficient. Why should a women's no be in any case taken as a yes and especially if it follows rape? The bench also ruled the minor wife could register a complaint against her husband if he tried to make sexual relations with her.

The move is being hailed by a step in the right direction for child rights and criminalisation of marital rape. Does a man having forced sex with his better half without her consent not destroy the institution of marriage already? Thankfully the latter part of the law has been changed but unfortunately, India still follows the first half of the law.

Describing as artificial the distinction between minor girl and a minor girl in child marriage, Justice Lokur said it was contrary to the philosophy of many statutes like Prohibition of Child Marriage Act and Protection of Children from Sexual Offences Act.

The court has definitely taken a historic decision, it even blamed the government saying that "What has the government of India done?"

The petitioner had further submitted that pregnancy at a young age can cause adverse health effects on the girl and the child and is violative of Article 15 of the Constitution.

An opening to discuss marital rape on the whole?

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