Sex with minor wife amounts to rape: SC

Supreme Court of India

Supreme Court of India

Supreme Court had earlier asserted that it would not like to get into the aspect of marital rape and said that it can not be considered as a criminal offence.

The Supreme Court of India ruled on Wednesday that sex with a wife who is under 18 years of age is rape and therefore a crime.

Exception 2 to Section 375 of the Indian Penal Code exempts marital rape of girls between the age of 15 and 18 from the purview of rape.

While pronouncing the verdict, the Supreme Court showed concern over the system of child marriage, observing that social justice laws had not been executed with the meaning they were established.

As Deya Bhattacharya had written in this Firstpost article, in August, the Supreme Court had outdone itself earlier this week when it stated that "marital rape can not be considered a criminal act".

The court also urged central and state governments to take proactive steps to prohibit child marriages in the country.

Vikram Srivastava, the founder of Independent Thought, one of the main petitioners in the case, told the BBC. POCSO specifically bars all sexual activities with girl children below the age of 18 years and the offence is aggravated if the accused is related through marriage. It said: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape".

Wednesday's verdict would not be applied retrospectively, however, said the court, which based its conclusions on India's Child Marriage Prohibition Act.

"The judgement today in two lines says that if anyone now marries a girl child below the age of 18 years and if the girl complains within a year of sexual intercourse, then that person can be prosecuted for rape", he said in comments broadcast on the NDTV news network.

A bench headed by Justice Madan B Lokur had on September 6 asked the Centre how Parliament could create an exception in a law when the age of consent is 18.

The court has clarified that the ruling is not in connection with the issue of marital rape.

The petition contended that this created a dichotomy as the age of consent was 18 years and it also defeated the objective of Prohibition of Child Marriage Act. The petitioner argued that under the law, a man is not considered guilty if he has sex with a child above 15.

However, this exception left room for the cruel sexual exploitation of minors in India, which recorded the second-highest number of child marriages between 2000 and 2012, behind Bangladesh, according to UNICEF. "Parliament has extensively debated the issue of marital rape and considered that it was not an offence of rape".

The government had defended the IPC exception before the Supreme Court in August, saying that the provision was meant to protect the institution of marriage.

In April 2016, the high-level Pam Rajput Committee strongly criticised the legislature for not criminalising marital rape as a whole.

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