What can be considered as a major step to discourage the practice of child marriage in India, the Supreme Court on Wednesday ruled that sex with a minor wife amounts to rape. In short, a man who has sex with her wife who is under the age of 18 years faces criminal prosecution.
Sexual intercourse with wife below 18-years to be considered rape, says Supreme Court. pic.twitter.com/ElivwbTBmr— ANI (@ANI) October 11, 2017
What exactly is the verdict?
The verdict strikes down the Exception 2 to Section 375 of the IPC (that criminalises rape) which previously provided immunity to a man who would indulge in non-consensual sex with his minor wife, aged between 15-18 years.
According to Section 375, the age for consent for a girl is 18 years and thus both consensual and non-consensual sex with a minor amounts to rape. However, the Exception 2, previously empowered a man to avoid prosecution for raping a minor if the girl was his wife. The age for consent for a married woman was 15 years.
This exception was found unfair and in violation of the rights of women in India by a Noida-based NGO Independent Thought that filed a petition in 2013.
They argued that since the year 2000, the policies in India have recognised any person below the age of 18 years as a child. Both Juvenile Justice (Care and Protection of Children) Act, and Prohibition of Child Marriage Act defines a child as anyone who is less than 18 years, thus the Exception stands as discriminatory and in violation of Article 14, 15 and 21 of the Constitution.
"The said provision discriminates between a girl child, aged between 15 and 18 years, and those above 18 years on the ground of marriage which has no rationale nexus to the purpose sought to be achieved. There is no justification whatsoever to maintain the age at 15 years only because the girl child is married. Thus, the provision is arbitrary and violates Article 14 of the Constitution," the PIL states, a copy of which is with Scoop Whoop News.
"Parliament has recognized that a girl less than 18 years is a child and therefore, not in a physical and mental condition to take an informed decision on sexual relationships. In such circumstances, there is no reason for the Parliament to retain the age of 15 years in Exception 2 of Section 375 of IPC. Hence, the said provision is arbitrary and violates Article 14 of the Constitution liable to be struck down," it further stated.
Thus, a girl child can now file a rape case against her husband within 1 year of marriage.
Wait, this verdict doesn't make sense. Isn't child marriage in India a crime?
Yes, child marriage is a crime in India but it is not banned. The Prohibition of Child Marriage Act 2006 only prohibits child marriage in India which means that even if a minor gets married his/her marriage cannot be considered null and void. The minor, by law, is still a wife or a husband.
"This is a loophole and it is a weak law. That's why this verdict is important," said Advocate Vikram Srivastava, founder of NGO Independent Thought.
Calling it an effort to strengthen the "Beti Bachao" part of the popular campaign pushing for women empowerment, Vikram was quick to point out that this decision will have a much greater impact.
"For now this decision can be interpreted as a major step by the Judiciary to discourage child marriages. The man is no longer protected by law to rape his minor wife. This will have serious and much larger implications," he added.
Will we now have a marital rape law?
With respect to this judgement and the petition, no.
The petition specifically mentioned about the Exception clause and did not dwell into the spectrum of marital rape.
"We were very focused because that argument would have distracted the purpose. This judgement has little to do with the requirement of a Marital Rape law in India. This judgement is, however, significant when it comes to criminalising child marriages and sexual assault of minors," said Vikram.
The Supreme Court Bench, as well, did not address the issue of marital rape.
"We do not want to go into the aspect of marital rape. That is for Parliament to see if they want to increase or decrease the age of consent. But once Parliament decided that we have fixed 18 years as the age of consent, can they carve out an exception like this," The Hindu quoted the response by a bench of Justices Madan B Lokur and Deepak Gupta.
(Feature image source: Reuters/Design: Shruti Mathur/ScoopWhoop)