It also admitted that the decision to retain a girl’s minimum age to marry at 15 years was done under the amended rape law to protect a couple against criminalisation of their sexual activity resulting from child marriage. 

The submission was made by Ministry of Home Affairs (MHA) before a bench of Chief Justice G Rohini and Justice Sangita Dhingra Sehgal, who were hearing a PIL which claimed that an “inconsistency” has crept in through the amended rape law which protects a husband from prosecution for the offence of unnatural sex with his wife. 

So what did the Ministry of Home Affairs say?

In its submission before the court,  MHA said that men cannot be held for offences related to sexual acts committed against their wives, even if they are under 18 years of age, because of Exception (2) of Section 375 of the Indian Penal Code. 

What does Section 375 of the Indian Penal Code say?

Section 375 of IPC, that deals with rape, identifies rape as when a man has sexual intercourse with a woman against her will, without her consent, with consent obtained illegally or illicitly, or unbeknownst by the woman, or with consent given under intoxication. 

It is also rape if sexual intercourse is had with a child of under 16 years, irrespective of consent.

But here’s the catch. In 2013, Section 375 was amended and an exception was added to this law, which said that a husband cannot be charged with rape for having sexual relations with his wife, as long as she is a minimum of 15 years of age. Marital rape has still not been recognised as a criminal offence in India. 

So why is the MHA affidavit controversial?

Because the government has claimed in the affidavit that the exception that kept the age of 15 for girls marrying in India had to be retained due to the ‘social realities’ of the country.

The ministry said: “the social, economic and educational development in the country is still uneven and child marriages are taking place”. 

“It has been decided to retain the age of 15 years under exception 2 of section 375 (rape) of the IPC so as to give protection to husband and wife against criminalising the sexual activity between them,” it said.

It also said that child marriages would continue to considered legal despite them being discouraged. 

“Although the age of consent is 18 years and child marriage is discouraged, marriage below the permissible age is avoidable but not void in law on account of social realities,” it said.

Strangely enough, this is complete contradiction to the Prohibition of Child Marriage Act 2006 which bans marriage of women under the age of 18, and men under the age of 21 in India. 

So basically if you have a child marriage, sex with a minor is legal. But in any other case it would be illegal.

 

Feature Image Source: Reuters

(Inputs From PTI)