Supreme Court outlined in a verdict recently that sexual intercourse by a man with his minor wife under the age of 18 will be a crime, and will be considered as rape.
Supreme Court started discussing on this issue after advocate Gaurav Agrawal representing NGO “Independent Thought” filed the Public Interest Litigation(PIL). NGO’s concern was that exception of IPC 375 was violative of the right to life, right to liberty and was discriminatory to girls and to young gullible boys as well.
Also, such practice not just affects the girl’s health but also to the coming generations. A girl between the age of 15 and 19 is twice as likely to die because of pregnancy compared to a girl in her early twenties.
Apart from the health perspective, a child bride forgoes her education as well in most cases, which further hinders her intellectual growth.
There are an estiated 23 million child brides in India, and hardly 6 to 7 convictions under anti-child marriage law has taken place.
It all started in the year 1929 during the colonial period, when British outlawed child marriage. However, during those times legal age for marriage was 15 for girls and 18 for boys. Under pressure from the Muslim organizations, a personal law Shariat Act for Muslim community was passed in 1937 allowing child marriages with consent from girl’s guardian.
After independence, child marriage act went through several revisions and amendments. Since the year 1978, the minimum legal marriageable age for women has been changed to 18 and that for men to 21. But then again few Muslim organizations had issues with the ruling.
Since then, it has been a controversial subject, and there have been series of cases and hearings. In the year 2006, PCMA i.e. Prohibition of child marriage act was passed, which came in to force on 1 Nov 2007.
According to PCMA, child marriages of girls under 18 will be a punishable offense. This law was applicable to only Hindus, Christians, Buddhists, and other non-Muslims of India since child marriages and Nikah has been claimed as a personal law subject. But, sex with minor girl or wife for that matter couldn’t.
Coming back to Exception 2 of Section 375 – It is a part of a Criminal Law Act of 2013 which contradicts anti-child sex abuse law and the Protection of Children from Sexual Offences Act of 2012(POSCO).
The inconsistency of this law which was cited by the NGO itself was that we see a girl under 18 as a child in POSCO, but once she is married, she is no more a child under the Exception 2 to Section 375 of the IPC.
According to section 375 of IPC, a man is convicted of rape of a woman if he has sexual intercourse against her will, without her consent and under other such similar circumstances. But before the Supreme Court’s ruling, the rule said that “Sexual intercourse by a man with his own wife who is under fifteen years of age is not to be considered as rape”. (Now revoked).
The truth is that a girl under 18 is still a child, married or not.
Supreme Court after finishing all the hearings gave one twenty-seven pages’ judgement.
The court said, “Human rights of a girl child are very important whether she is married or not and deserve recognition and acceptance.” Hence, sexual intercourse by a man with her minor wife will be considered as rape.
Justice Lokur wrote in his judgement that “A child remains a child whether she is described as a street child or a surrendered child or an abandoned child or an adopted child. Similarly, a child remains a child whether she is a married child or an unmarried child or a divorced child or a separated or widowed child. At this stage, we are reminded of Shakespeare’s eternal view that a rose by any other name would smell as sweet — so also with the status of a child, despite any prefix”.
Supreme Court expressed concern about PCMA but left it to the girl to approach the court to declare her marriage null. Also, she has to do this within two years of attaining majority, this is by the time she is 20 years old. If not, the marriage continues.
With this judgement, the Supreme Court has ended old age confusion between Exception 2 to Section 375 IPC and other child protection laws in India. Like, the Prohibition of Child Marriage Act of 2006, Protection of Children from Sexual Offences Act (popularly known as POSCO), and Juvenile Justice Act, all which define “child” as someone who is below 18 years of age.