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Sex with minor wife is rape now

The Supreme Court on Wednesday said sex with wife below 18 years of age is rape, striking down the provision of criminal law that permitted sex with wife aged between 15 and 18. The husband is liable to be prosecuted if the woman files a complaint within a year of the sexual act, the Supreme Court said.

The landmark order comes at a time when the apex court is already hearing petitions calling for marital rape to be declared crime and a debate over the age of consent.

The court, however, made it clear that it was not saying anything on the larger issue of marital rape even though the verdict would have a prospective affect on that.

Rape and child marriage laws of India disagree on age of consent. Section 375 of the Indian Penal Code says sex with a girl less than 18 is rape but it makes an exception allowing sex with wife who is 15 or above, saying it is not rape even if it is without her consent.

 


WHAT THE SUPREME COURT ORDER MEANS

Exception to Rape Struck Down

Section 375 of the Indian Penal Code has an exception which allows a husband to have sexual relationship with his 15-year-old wife. The exception states: “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

This is in conflict with the legal definition of a child in the Protection of Children from Sexual Offences Act 0f 2012, which sets the bar at 18 years of age.

Another Blow to Child Marriage

The exception to rape clause in the IPC has in effect been a proviso that allows child marriages. The legal age of marriage for girls is 18 in India, and breaking this law—The Prohibition of Child Marriage Act—invites punishment. Child marriage remains a social reality in India, however. Unicef estimates that 47 per cent of all girls are married before they are 18 and almost a fifth before they are 15.


 

A bench of Justice Madan B. Lokur and Justice Deepak Gupta — in separate but concurring judgements — said the exception was “arbitrary, discriminatory and capricious”.

Justice Lokur said the exception has no rational nexus with the objective sought to be achieved by the different statutes. 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 also urged the Centre and the state governments to take proactive steps to discourage child marriages. Justice Gupta said the exception carved out in Section 375 of the Indian Penal Code was violative of Article 14, Article 15 and Article 21 of the Constitution.

(With IANS)

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