The court made it clear, however, that it was not dealing with the issue of marital rape as a whole.
The apex court asked the Centre and states to take proactive steps to prohibit child marriage across the country. Credit: Reuters
New Delhi: The Supreme Court, in a landmark judgement, today criminalised sex with a minor wife aged between 15 and 18 years, saying the exception in the rape law was arbitrary and violative of the constitution.
Section 375 of the IPC, which defines the offence of rape, has an exception clause that says intercourse or sexual acts by a man with his wife, not below 15 years, is not rape.
However, the age of consent is 18 years.
The apex court said the exception in the rape law was contrary to the philosophy of other statutes and violates the bodily integrity of a girl child.
The judgement was in a petition filed by the NGO Independent Thought. Advocate Gaurav Agrawal had appeared for the petitioner NGO.
A bench comprising Justices Madan B. Lokur and Deepak Gupta also expressed concern over the prevalent practice of child marriage in the country and said social justice laws were not implemented with the spirit with which they have been enacted by parliament.
Also read: Marital Rape and Child Marriage – Two Sides Of The Same Coin
The bench clarified that it has not dealt with the issue of marital rape as it was not raised before it by respective parties.
Justice Gupta, who wrote a separate but concurrent verdict, said the age of marriage was 18 in all laws and the exception given in the rape law under the IPC is “capricious, arbitrary and violates the rights of a girl child”.
The apex court said the exception is violative of Article 14, 15 and 21 of the constitution.
It asked the Centre and states to take proactive steps to prohibit child marriage across the country, and voiced concern over thousands of minor girls being married in mass wedding ceremonies on the occasion of Akshaya Tritiya.
The court had earlier reserved the verdict while questioning the Centre on how the parliament could create an exception in law declaring that intercourse or a sexual act by a man with his wife, aged between 15 and less than 18 years, is not rape when the age of consent is 18.
The apex court had also observed that child marriage cannot go on like this just because this illegal practice was assumed to be legal and has been going on for ages.
The petitioners had sought a direction to declare exception 2 to Section 375 of IPC as “violative of Articles 14, 15 and 21 of the Constitution to the extent that it permits intrusive sexual intercourse with a girl child aged between 15 and 18 years, only on the ground that she has been married”.
Also read: Marital Rape, and Not Its Criminalisation, Debases Society
The petitioners had argued that the exception to Section 375 of the IPC was defeating the purpose of the Prohibition of Child Marriage Act and was also in violation of international conventions to which India was a signatory.
They had also referred to the provisions of the POCSO Act and said these were contrary to the IPC provision.
In August this year, the Centre had countered the petition by saying that given the “socio-economic realities” around child marriage in India, the exception is needed to “protect the institution of marriage”.
“Otherwise, the children from such marriages will suffer,” the Centre’s lawyer Binu Tamta said then.
“Isn’t this an incentive for child marriage?” Justice Lokur had asked in response.
Poonam Mutreja, executive director of the Population Foundation of India, welcomed the Supreme Court’s judgment, given that “Young girls in the age group below 18 are still developing physically and mentally,
and may not be in a position to make informed decisions and choices regarding their health and well-being”. In addition, she talked about why the courts should criminalise marital rape as a whole. “I wholeheartedly welcome the SC ruling that reiterates the need to safeguard the rights of girls and women. This is a timely and positive step in the right direction for the discourse on marital rape and the subject of consent. In addition, I would urge the courts to take cognisance of the predicament of adult women who live in fear of rape or sexual violence at the hands of their spouse and in the security of her home,” Mutreja’s statement says.
The exception that the court was dealing with has been the centre of controversy for years, since it fails to criminalise marital rape or recognise the importance of consent within a marriage. “Parliament has extensively debated the issue of marital rape and considered that it was not an offence of rape. Therefore, it cannot be considered as a criminal offence,” the bench said previously in this case.
A groups of petitions challenging the marital exception to Section 375 in its entirety is currently being heard by the Delhi high court. The lead petitioners in the case NGO, the RIT Foundation and the All India Democratic Women’s Association (AIDWA) argue that the exception under Section 375, by discriminating against married women, violates Articles 14 and 15 of the constitution, which prohibit discrimination without an intelligible basis, as well as violating Article 21, which guarantees the right to life and personal liberty, and Article 19, which should guarantee the freedom to express or withhold sexual desire in all consensual contexts, The Wire reported earlier.
In April 2016, the high-level Pam Rajput Committee strongly criticised the legislature for not criminalising marital rape as a whole. The Justice Verma Committee, which was set up following nationwide protests after the gangrape and murder of Jyoti Singh Pandey in December 2012, had also said, “The law ought to specify that marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation.”
(With PTI inputs)
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