New Delhi, Sep 1: Supreme Court on Thursday said marriage is not an exemption under the law to protect children from sexual offences. The apex court’s observation assumes significance as marital rape is not recognised as a crime and the Section 375 of the Indian Penal Code (IPC) protects any man having sexual intercourse with his minor wife above 15 years of age. The top court made the key observation while hearing a plea challenging the validity of a provision permitting a man to have a physical relationship with his wife, even if she was aged between 15 and 18 years.
During the hearing, a bench of Justices M B Lokur and Deepak Gupta said striking down of such provision in section 375 of the Indian Penal Code (IPC) would amount to creating an offence. Section 375 of the IPC, which defines the offence of rape, has an exception clause that says intercourse or sexual act by a man with his wife, not below 15 years, is not rape. The top court said cases of forceful sex with a minor wife could well be dealt with under the POCSO law and proceedings could be initiated against the husband. (ALSO READ: Criminalizing Marital Rape May Become Tool For Harassing Husbands: Centre tells Delhi HC)
It is a hard reality and is unfortunate that most of the child marriages happening in the country are done by parents of the girl child.
Supreme Court also expressed dismay over the prevalence of the practice of child marriage despite the existence of the Child Marriage Prohibition Act. The court blamed girl child’s parents. “It is a hard reality and is unfortunate that most of the child marriages happening in the country are done by parents of the girl child. However, to this, there are odd exceptions when a minor boy and girl fall in love and marry on their own,” the two-judge bench said.
An NGO Independent Thought has sought direction for fixing the age of consent of a wife at 18 years for having sex with her husband instead of 15 as of now. Advocate Gaurav Agarwal, appearing for NGO Independent Thought, said by amendment to CrPC in 2013, the age of consent for sexual intercourse by a girl, which was earlier 16 years has now been increased to 18 years. He said that exception 2 to section 375 of the IPC still retains the age of consent for 15 years, due to which there is a huge gap of three years in the age of consent for a married girl child and an unmarried girl.
Taking note of the arguments, the bench said, “We have to accept this hard reality. These kind of marriages are still happening in the country and if we are going to strike down this exception, then what would happen to the child born from such marriages. We have to keep all aspects in mind.”
The Centre, in its affidavits, had admitted that child marriages were still happening in the country due to uneven economic and educational development. “It has been therefore decided to retain the age of 15 years under exception 2 of section 375 of IPC, so as to give protection to husband and wife against criminalising the sexual activity between them,” it had said. It had said that lawmakers had taken a pragmatic view regarding the issue of ‘marital rape’ as marriage being a social institution was the bedrock of any society and hence, needs to be protected. (With PTI inputs)