SC rewrites 77-yr law, says sex with under-18 wife is rape

Amit Anand Choudhary and Dhananjay Mahapatra| TNN | Updated: Oct 12, 2017, 04:29 IST

HIGHLIGHTS

The Centre said this is not an intercourse without consent. This is a tradition and marital rape has potential to destroy the institution of marriage

The SC bench said none of the justifications is acceptable

The age of consent is fixed at 18 years, the bench said

NEW DELHI: In a landmark judgment, the Supreme Court junked a 77-year-old law on Wednesday and ruled that sex between a man and his wife below 18 years of age will count as rape and the husband can face up to 10 years' imprisonment under the Indian Penal Code or even a life term under the POCSO (Protection of Children from Sexual Offences) Act of 2012.

READ ALSO: Government draws SC fire for legitimising rape

The SC, however, clarified that it has not touched on the issue of marital rape—a husband forcing himself on his wife despite her unwillingness to have sex. "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 or more since that issue is not before us at all. Therefore, we should not be understood to aver to that issue even collaterally," it said. Through its ruling, the SC rejected the government's contention that social realities required that the exemption provided in the case of unions where the wife's age is between 15 and 18 be retained. In case of such marriage, the age of consent was seen to be 15. The ruling, welcomed by women's groups and seen as socially progressive, will face challenges in implementation, particularly in terms of an underage wife's ability to register a complaint

READ ALSO: Tradition can't be an excuse, says SC

A bench of Justices Madan B Lokur and Deepak Gupta, in separate but concurrent judgments running to 126 pages, ruled that IPC Section 375(2), which exonerated a husband of rape charges even if he had sex with his wife who is in the age group of 15-18 years, was unconstitutional and against several other laws, including the POCSO Act. By this ruling, the SC has established a uniform 18 years as age of consent, age of marriage and the exception to rape under Section 375 of IPC, which had been different ever since the IPC came into force in 1 860. Exception 2 to Section 375 of IPC said it was not rape if a man had sex with his wife who was above the age of 15 years.

READ ALSO: Make child marriages void, says Court

Justice Lokur said: "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. This artificial distinction is arbitrary and discriminatory and is definitely not in the interest of the girl child."

Despite Parliament enacting the Prevention of Child Marriage Act, 2006, which penalises a man marrying a girl below 18 years of age with a jail term up to three years, a number of child marriages are solemnised secretly. With this SC ruling, men marrying girls below 18 and having sex with them could face rigorous imprisonment of up to 10 years under IPC or even life term under POCSO Act.

READ ALSO: Barelvi clerics may challenge court's ruling

The SC rejected three objections put up by the Centre to the petition by NGO 'Independent Thought' challenging validity of Section 375(2) of IPC.

The Centre had said, first, the minor wife, by consenting to marriage has agreed to sexual intercourse with the husband; second, traditionally child marriage is prevalent in many parts of the country and tradition must be respected; third, the 167th report of the Parliamentary Standing Committee of Rajya Sabha (March 2013) recorded that several members felt that marital rape has potential to destroy institution of marriage.

READ ALSO: Focus now on marital rape, say activists

Justice Lokur said: "In law, it is difficult to accept any one of these justifications. There is no question of a girl child giving express or implied consent for sexual intercourse. The age of consent is statutorily and definitively fixed at 18 years and there is no law that provides for any specific deviation from this."

READ ALSO: 25% of wives aged 14-20 tied knot when minors

Justice Gupta looked at the issue from the minor girl's health and said: "When a girl is compelled to marry before she attains the age of 18 years, her health is put in serious jeopardy. As is evident from various reports, girls who were married before the age of 19 years are likely to suffer medical and psychological problems. A 15 or 1 6 year-old girl, when forcibly subjected to sexual intercourse by her 'husband', undergoes trauma, which her body and mind is not ready to face. The girl child is also twice more likely to die in childbirth than a grown-up woman."

Justice Lokur said the distinction between unmarried girl child and a married girl child under Section 375(2) was in breach of the right under Article 15(3) that provides for special protection for women and weaker sections of society and right to life protected under Article 21 of the Constitution as also India's international commitment under Convention of the Rights of the Child (CRC). "It is also contrary to the philosophy behind some statutes, the bodily integrity of the girl child and her reproductive choice. What is equally dreadful, the artificial distinction turns a blind eye to trafficking of the girl child and surely each one of us must discourage trafficking which is such a horrible social evil," he said. Justice Lokur said Section 375(2) as it existed had taken away the girl child's right to decline sex with her husband and worse, made non-consensual sex by the husband not an offence.

The judgment, however, gives rise to several questions, including whether the minor wife would overcome social compulsion and bring rape charges against her husband? And would this mean that sexual intercourse between boys and girls below the age of 18 years be treated as rape irrespective of the girl's consent since the age of consent is now set at 18 years without any exception? Also, what will be the exact legal status of marriages where the wife is below 18? If these unions are illegal, what would be the fate of children born in such marriages?