Sex with minor wife amounts to rape: SC

Satya Prakash

Tribune News Service

New Delhi, October 11

Sex with one’s minor wife would amount to rape, the Supreme Court ruled today. A Bench of Justice Madan Lokur and Justice Deepak Gupta watered down an exception to Section 375 of the IPC which said sexual intercourse by a man with his wife not under the age of 15 would not amount to rape.

“In our opinion, sexual intercourse with a girl below 18 years of age is rape, regardless of whether she is married or not,” the top court ruled, adding a minor wife could file a rape complaint within a year of the alleged crime. The verdict will not apply to past cases.

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“Merely because child marriages have been performed in different parts of the country as a part of a tradition or custom does not necessarily mean that the tradition is an acceptable one, nor should it be sanctified as such. Times change and what was acceptable a few decades ago may not necessarily be acceptable today,” the top court said.

But even after this verdict, marital rape in general continues not to be a crime. “We make it clear that we have refrained from making any observation with regard to the marital rape of a woman who is 18 years of age and above since that issue is not before us at all. Therefore, we should not be understood to advert to that issue even collaterally,” the Bench clarified.

It said the exception to rape in the IPC was inconsistent with special laws, such as the Juvenile Justice Act and the Protection of Children from Sexual Offences (POCSO) Act, that fixed the age of consent of the girl at 18. The Prohibition of Child Marriage Act (PCMA) too prescribed the marriageable age for girls as 18.

“The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. The artificial distinction is discriminatory and is definitely not in the interest of the girl child,” the Bench said. The ruling harmonises the definition of rape under the IPC with POCSO which treats sex with a minor as crime, irrespective of her consent.

Ironically, though prohibited, child marriages once solemnised are not void. Child marriages are voidable at the instance of the minor who can exercise the option of repudiating it after attaining majority.

The order came on a PIL by NGO Independent Thought filed in 2013, demanding that Exception 2 to Section 375 of the IPC be declared unconstitutional as it violated Articles 14 (right to equality),15 (right to non-discrimination) and 21 (right to live with human dignity) of the Constitution.

The petitioner challenged the exception on the ground that it permitted intrusive sexual intercourse with a girl child aged between 15 and 18, only on the grounds that she was married. The age of consent for sexual relationship should be treated as 18, irrespective of the marital status of the girl child, the petitioner contended.

Upholding the contention, the Bench said the law under challenge went against “the bodily integrity of the girl child and her reproductive choice.” It said the exception in question was contrary to the philosophy and ethos of Article 15 (3) of the Constitution which empowered the State to make special laws in favour of women and children as also Article 21 (right to life and liberty), India's commitment to international conventions and to the philosophy behind some statutes.

Terming the exception to Section 375 of IPC as "dreadful", the Bench said it "turns a blind eye to trafficking of the girl child…which is such a horrible social evil".

In a separate but concurring verdict, Justice Gupta said the exception was liable to be struck down as it was "arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore violative of Article 14, 15 and 21 of the Constitution of India".

Referring to a government affidavit based on a National Family Health Survey, the court noted that child marriage was a big problem as 46 per cent of women in India in 18 -29 age group were married before 18. "The sooner the practice of child marriage was given up, it would be in the best interest of the girl child and for society as a whole," the Bench said.

Landmark Judgment

In our opinion, sexual intercourse with a girl below 18 years of age is rape, regardless of whether she is married or not — Supreme Court

For the longest time human traffickers have been using marriage with minors as an alibi to rape young girls in the first instance before selling them to pimps and brothel owners —  Justice & Care, NGO