Supreme Court decided to examine whether sexual intercourse between a man and his minor wife is considered a crime?

NEW DELHI,August10: Can sexual intercourse between a man and his minor wife be termed an offence? The Supreme Court decided to examine the issue on Wednesday to protect the interest of brides who might be younger than 18, the legal age of marriage, despite the law prohibiting such a union.

A bench of Justice Madan B Lokur and Justice Deepak Gupta also expressed reservations whether the judiciary could “create an offence” in the law book when the Parliament had refused to recognise marital rape.

The court’s decision comes in the context of instances of girls in the age group of 15 to 18 being married off even though the incidence has declined in recent years. It is this category, rather than younger girls, that may be the focus of the court’s attention.

“Child marriage is not a good social practice but we cannot forget that that there are millions of such marriages taking place in the country. It should be changed through social movement. Although there are inconsistencies in various laws but can we create an offence through judicial interference?,” the apex court bench said.

The issue at hand is that sex with a minor is statutory rape and whether it can be different in a marriage. The court was hearing a PIL filed by an NGO seeking direction for fixing the age of consent of a wife at 18 years for having sex with her husband. It challenged constitutional validity of the amendment in Section 375 (rape) of the IPC, which makes an exception on age of consent of the wife for sex.

The Centre opposed the plea, saying marriage was sacrosanct and a social institution and it had to be protected particularly when the child marriage was a reality in the country. The exception in Section 375, which was amended in 2013, states that “sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape”.

Advocate Gaurav Agrawal, appearing for the petitioner, submitted that if the age of adulthood had been fixed at 18 years, the same should apply in the case of age of consent of a woman for sex. ”

We see a girl under 18 years of age as a child in POCSO Act, but once she is married, she is no more a child under the exception 2 to Section 375 of the IPC. This is totally inconsistent. The truth is that a girl under 15 is still a child, married or not. The Parliament has to protect the child,” Agarwal submitted. He said that there are 23 million child brides in the country and there had hardly been over six convictions under the anti-child marriage law.
The NGO submitted that this statutory exception to rape was violative of right to life and personal liberty of girl child and was contrary to POCSO. The court said the matter needed to be examined and asked the petitioner to file a report regarding adverse health impacts on girls who are married at the age of 15 to 18 years. It also pulled up the Centre for not taking steps to curb the practice of child marriages.
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