Sex with wife under 18 is rape, SC regulation; underlines the right of the girl to choose

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In a landmark verdict that strengthens the girl’s legal protection, the Supreme Court criminalized the sexual act of a husband with his wife under the age of 18. The decision applies to all religions and is expected to act as a deterrent against child marriage, which, although prohibited by law, continues to prevail in many parts of the country.

Section 375 of the Indian Penal Code, which defines the offense of rape, has an exception clause stating that sexual or sexual intercourse by a man with his wife, not less than 15 years of age, is not a violation. However, the age of consent is 18 years.

A Magistrates’ Court Madan B Lokur and Deepak Gupta read this exception on the grounds that it was inconsistent with other statutes relating to children such as the Child Marriage Prevention Prohibition Act (PCMA), the Juvenile Justice Act and the Protection of Children against Sexual Offenses (POCSO) – all these have set the girl’s minimum age for sex at eighteen.

“… In our view, sexual relations with a girl under the age of 18 are violations regardless of whether she is married or not,” the court said, adding: “The IPC exception creates an unnecessary and artificial distinction between a marriage girl and single girl and does not have a rational nexus with a clear objective that is sought to achieve. The artificial distinction is discriminatory and definitely not in the interest of the girl. ”

It was also “contrary to the philosophy and spirit of Article 15 (3) of the Constitution, as well as to what is opposed to Article 21 of the Constitution and our commitments in international conventions … and the philosophy behind some statutes, the physical integrity of the child girl and her reproductive choice, “the ruling said, adding that it was” appalling “to” turn a blind eye to child trafficking … which is such a horrible social evil. ”

The court was hearing a petition from Independent Peoples, an NGO on child rights based in Delhi.

The “only pragmatic opinion available” was “to read (this) exception to article 375 of the CIP in an intentional way to be in line with the POCSO Act, the spirit of other legislation in favor of the child and the human rights of a girl child girl, “Judge Lokur wrote in his judgment, which had 70 pages.

Judge Gupta, who wrote a separate ruling in agreement with Judge Lokur, said that such an exception could be removed because it is “arbitrary, capricious, capricious and violating the rights of the child and is not fair, just and reasonable and , therefore, violates Articles 14, 15 and 21 of the Constitution of India. ”

He also clarified that the sentence will have a “prospective effect”, which means that it will not apply to past cases and that the knowledge of such crimes can only be taken in accordance with the provisions of article 198 (6) of the Code of Criminal Procedure . The provision says that the court will not hear of an offense under Section 376 IPC “if more than one year has elapsed since the date of commission of the offense.”

The court, however, made it clear that it was not making any observations about “marital rape” of a woman who is 18 years or older, since the problem was not before the court.

The question of whether marital rape should be criminalized is pending before the Delhi High Court, where the Center has filed an affidavit against this saying that in doing so may destabilize the institution of marriage, as well as being an easy tool to harass to the spouses.

Today’s ruling also referred to the Indian government affidavit that drew the court’s attention to the National Family Health Survey – 3 (2005), which states that 46 per cent of women in India are 18 and 29 percent were married before the age of 18.

In PCMA, which says that a child marriage is not void, it can only be annulled at the choice of either party, the order says “in other words, it seeks to have child marriage legitimated in some way by the Union of India and the responsibility of declaring it voidable or the nullity of the bride or groom. ”

Judge Gupta also answered the question of whether the court, by invalidating the exception, would be creating a new offense that the legislature did not intend to do. “From my point of view, as far as this case is concerned, this Tribunal is not creating any new offense but only eliminating the unconstitutional and offensive.”

Justice Gupta said: “if the husband beats a girl child and has forcible sexual intercourse with her, he may be charged for offences under Sections 323, 324, 325 IPC etc. but he cannot be charged with rape. This leads to an anomalous and astounding situation where the husband can be charged with lesser offences but not with the more serious offence of rape.”