ADVERTISEMENT

SC says sex with minor wife is rape as it aligns anti-rape, child protection laws

In a significant judgement, the Supreme Court today held that sexual intervourse with a girl below 18 years of age is rape, regardless of whether she is married or not, as it aligned the country's anti-rape and child protection laws with each other.
 
In their judgement on a writ petition filed by Independent Thought, a two-judge bench, consisting of Justices Madan B. Lokur and Deepak Gupta, said Exception 2 to Section 375 of the Indian Penal Code (IPC), 1860, under which sexual intercourse between a man and his wife, being a girl between 15 and 18 years, was not rape, had created "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 arbitrary and discriminatory and is definitely not in the best interest of the girl child. The artificial distinction is contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in international conventions. It is also contrary to the philosophy behind some statutes, the bodily integrity of the girl child and her reproductive choice," Mr. Justice Lokur said in his judgement.
 
"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.
 
The judges made it clear that they had efrained from making any observation with regard to the marital rape of a woman who is 18 years of age and above since that issue was not before them at all. "Therefore we should not be understood to advert to that issue even collaterally," the judgement said.
 
Mr. Justice Lokur said: "On a complete assessment of the law and the documentary material, it appears that there are really five options before us: (i) To let the incongruity remain as it is – this does not seem a viable option to us, given that the lives of thousands of young girls are at stake; (ii) To strike down as unconstitutional Exception 2 to Section 375 of the IPC – in the present case this is also not a viable option since this relief was given up and no such issue was raised; (iii) To reduce the age of consent from 18 years to 15 years – this too is not a viable option and would ultimately be for Parliament to decide; (iv) To bring the POCSO Act in consonance with Exception 2 to Section 375 of the IPC – this is also not a viable option since it would require not only a retrograde amendment to the POCSO Act but also to several other pro-child statutes; (v) To read Exception 2 to Section 375 of the IPC in a purposive manner to make it in consonance with the POCSO Act, the spirit of other pro-child legislations and the human rights of a married girl child.
 
"Being purposive and harmonious constructionists, we are of opinion that this is the only pragmatic option available. Therefore, we are left with absolutely no other option but to harmonize the system of laws relating to children and require Exception 2 to Section 375 of the IPC to now be meaningfully read as: 'Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.'
 
"It is only through this reading that the intent of social justice to the married girl child and the constitutional vision of the framers of our Constitution can be preserved and protected and perhaps given impetus," Mr. Justice Lokur added.
 
ADVERTISEMENT
Mr. Justice Gupta, while fully agreeing with the both reasoning given by Mr. Justice Lokur and the conclusions arrived at, expressed his own views in a separate concurring judgement in which  he gave some other reasons while reaching the same conclusion.
 
"I am clearly of the opinion that Exception 2 to Section 375 IPC in so far as it relates to a girl child below 18 years is liable to be struck down on the following grounds:–
(i) it is 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;
(ii) it is discriminatory and violative of Article 14 of the Constitution of India and;
(iii) it is inconsistent with the provisions of POCSO, which must prevail.
 
"Therefore, Exception 2 to Section 375 IPC is read down as follows:
'Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape'. It is, however, made clear that this judgment will have prospective effect.
 
He also clarified that Section 198(6) of the Code will apply to cases of rape of “wives” below 18 years, and cognizance can be taken only in accordance with the provisions of Section 198(6) of the Code.
 
The petitioner is a society working in the area of child rights. The society had filed the petition under Article 32 of the Constitution in public interest with a view to draw attention to the violation of the rights of girls who are married between the ages of 15 and 18 years.
 
According to the petitioner, Section 375 of the IPC prescribes the age of consent for sexual intercourse as 18 years meaning thereby that any person having sexual intercourse with a girl child below 18 years of age would be statutorily guilty of rape even if the sexual activity was with her consent. Almost every statute in India recognizes that a girl below 18 years of age is a child and it is for this reason that the law penalizes sexual intercourse with a girl who is below 18 years of age. 
 
"Unfortunately, by virtue of Exception 2 to Section 375 of the IPC, if a girl child between 15 and 18 years of age is married, her husband can have non-consensual sexual intercourse with her, without being penalized under the IPC, only because she is married to him and for no other reason. The right of such a girl child to bodily integrity and to decline to have sexual intercourse with her husband has been statutorily taken away and non-consensual sexual intercourse with her husband is not an offence under the IPC," the petition had said.
 
NNN
 
ADVERTISEMENT
 

Comments

Post new comment

The content of this field is kept private and will not be shown publicly.
  • Web page addresses and e-mail addresses turn into links automatically.
  • Allowed HTML tags: <a> <em> <strong> <cite> <code> <ul> <ol> <li> <dl> <dt> <dd> <canvas>
  • Lines and paragraphs break automatically.

More information about formatting options

© Copyright 2012 NetIndian. All rights reserved. Republication or redistribution of NetIndian content, including by framing or similar means, is expressly prohibited without the prior written consent of NetIndian Media Corporation. Write to info[AT]netindian[DOT]in for permission to use content. Read detailed Terms of Use.