Supreme Court: Sex between man and minor wife is rape
New Delhi: In a landmark judgment, the Supreme Court on Wednesday ruled that a man who has sex with his minor wife is guilty of rape.
The move is expected to go a long way in discouraging the practice of child marriage in India. It is also likely to have a bearing on the criminality of marital rape, an issue which has been widely debated both by Parliament and the courts.
“The exception carved out under section 375 (which defines rape) exempting marital rape for minors is artificial and contrary of Article 21 (right to life) of the Constitution of India,” said justice Madan B. Lokur, while pronouncing the judgment.
In a concurring judgment, passed by justices Lokur and Deepak Gupta, the court read down the provision of the Indian Penal Code (IPC), 1860 which exempted marital rape in case of minors.
The purposive reading down was done to bring it in line with the Protection of Children from Sexual Offences Act (POCSO), 2012, in the spirit of other pro-child legislation and the human rights of a married girl child.
The earlier age of 15 years has now been modified to 18 years for claiming exemption under the amended rape provisions.
Accordingly, the exemption clause now reads—“sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”
It was also clarified that the court had not gone into the issue of marital rape since it did not form the subject matter of the case before it. Rights advocates welcomed the ruling.
“It is a landmark ruling which comes as a win for all those fighting for child rights, violence against children, etc. It will definitely help to reduce child marriage and exploitation of young girls. But I cannot say how it will be implemented. Since the implementation will have to be done by the police, they should be adequately trained so that they cannot use a lacunae in the ruling for not implementing it in the right spirit,” said Rishi Kant, social activist at anti-trafficking non-government organization (NGO) Shakti Vahini.
He added that the need of the hour was to create awareness at the panchayat level about the consequences that a man would face if he marries a minor girl.
The court was ruling on a public interest litigation (PIL) by an NGO, Independent Thought, challenging the exception made out under provisions of the Indian Penal Code, which exempted marital rape of girls between 15 and 18 years of age by their husbands on the pretext of marriage.
The centre had maintained that Parliament had fixed the age of 15 years, keeping the social and economic conditions of the country in mind. Its stand has been similar on marital rape, where it said that if recognized as a crime, it could “destabilize the institution of marriage, apart from being an easy tool for harassing husbands”.
In a 127-page judgment, justice Gupta disagreed with the centre’s stand on child marriage and its decision to not criminalize the consummation of child marriages in view of age-old traditions.
He also held the exception to be “discriminatory”, since it is the only provision in various penal laws that “gives immunity to the husband” against the serious offence of rape.
“Merely because something is going on for a long time is no ground to legitimize and legalize an activity which is per se illegal and a criminal offence,” Gupta said.
The apex court ruling took into consideration the discrimination under the prevailing law where if a man had sex with a girl under 15 years of age, it was termed as rape—irrespective of consent. However, if she was below 18 years of age but more than 15 years and married, then there was no offence of rape.
The petitioner had sought the court’s direction to declare the legal exception under the IPC as violative of Articles 14 (equality under law) and 21 (right to life) of the Constitution of India to the extent that it permits intrusive sexual intercourse with a girl child aged between 15 and 18 years, only on the grounds of her being married.
Under provisions of POCSO Act, a physical relationship with a minor constitutes rape and this does not exclude the relationship between a man and his minor wife.
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