Sex with wife below 18 years is rape, rules SC; underlines the girl’s right to choose

The bench asked the Centre and the states to take proactive steps to prohibit child marriage across the country.

IN a landmark verdict that strengthens legal protection to the girl child, the Supreme Court today criminalised sexual intercourse by a husband with his wife who is under 18 years of age. The decision applies to all faiths and is expected to act as a deterrent against child marriage, which, although prohibited under the law, is still prevalent in many parts of the country.

Section 375 of the Indian Penal Code, 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. However, the age of consent is 18 years.

A bench of Justices Madan B Lokur and Deepak Gupta read down this exception arguing that it was inconsistent with other statutes dealing with children such as The Prohibition of Prevention of Child Marriage Act (PCMA), Juvenile Justice Act and The Protection of Children from Sexual Offences (POCSO) Act — all these have fixed the minimum age of the girl child for sexual relations at eighteen.

“…In our opinion, sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not,” the court said adding: “The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. The artificial distinction is discriminatory and is definitely not in the interest of the girl child.”

It was also “contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in international conventions…and to the philosophy behind some statutes, the bodily integrity of the girl child and her reproductive choice,” the judgment said adding it was “dreadful” that it also “turns a blind eye to trafficking of the girl child..which is such a horrible social evil”.

The court was hearing a petition by Delhi-based child rights NGO Independent Thought.

The “only pragmatic opinion available” was “to read (this) exception to Section 375 of the IPC in a purposive manner to make it in consonance with the POCSO Act, the spirit of other pro-child legislations and the human rights of a married girl child”, Justice Lokur wrote in his judgement which ran into 70 pages.

Justice Gupta, who wrote a separate judgment concurring with Justice Lokur, said the said exception was liable to be struck down as it is “arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Article 14, 15 and 21 of the Constitution of India”.

He also clarified that the judgment will have “prospective effect” meaning it will not apply to past cases and that cognizance of such offences can be taken only in accordance with the provisions of section 198(6) of the Criminal Procedure Code. The provision says that court shall not take cognizance of an offence under Section 376 IPC “if more than one year has elapsed from the date of commission of the offence”.

The bench, however, clarified that it was not making any observation on “marital rape” of a woman who is 18 years of age and above as the issue was not before the court.

The question whether marital rape should be criminalised is pending before the Delhi High Court where the Centre has filed an affidavit opposing this saying that doing so may destabilize the institution of marriage apart from being an easy tool for harassing husbands.

Today’s judgment also referred to the counter affidavit of the Government of India which drew the attention of the court to the National Family Health Survey — 3 (of 2005) which states that 46 percent of women in Indian between the ages of 18 and 29 were married before the age of 18 years.

On PCMA, which says that a child marriage is not void, but only voidable at the option of any of the parties, the order said “in other words a child marriage is sought to be somehow ‘legitimized’ by the Union of India and the onus for having it declared voidable or a nullity is placed on the child bride or the groom”.

Justice Gupta also answered the question whether the court by invalidating the exception will be creating a new offence which the legislature did not intend to make. “In my view, as far as this case is concerned, this Court is not creating any new offence but only removing what was unconstitutional and offensive.”

Justice Gupta said: “if the husband beats a girl child and has forcible sexual intercourse with her, he may be charged for offences under Sections 323, 324, 325 IPC etc. but he cannot be charged with rape. This leads to an anomalous and astounding situation where the husband can be charged with lesser offences but not with the more serious offence of rape.”

On child marriages, he said that “in the National Family Health Survey-4, 2015-2016…it was found that at the time of carrying out the survey in 2014, amongst women in the age group of 20-24 years, almost 26.8% women were married before they attained the age of 18 years, i.e. more than one out of 4 marriages was of a girl child.”

He also referred to a report based on the 2011 Census and said that it “reveals a shocking aspect that girls below the age of 18 years are subjected to three times more marital rape as compared to the grown-up women.”

Justice Gupta also pointed to the need for amending PCMA. The Act, said Justice Gupta “has been breached with impunity”. He added, “I think the time has come when this Act needs serious reconsideration, especially in view of the harsh reality that a lot of child trafficking is taking place under the garb of marriage including child marriage.”

Stating that child marriages not only violated human rights, the judge said that it also affects the health of the child.

“Good health is the raison d’etre of a good life. Without good health there cannot be a good life. In the case of a minor girl child, good health would mean her right to develop as a healthy woman. This not only requires good physical health but also good mental health. The girl child must be encouraged to bloom into a healthy woman. The girl child must not be deprived of her right of choice. The girl child must not be deprived of her right to study further…In the modern age, when we talk of gender equality, the girl child must be given equal opportunity to develop like a male child. In fact, in my view, because of the patriarchal nature of our society, some extra benefit must be showered upon the girl child to ensure that she is not deprived of her right to life, which would include her right to grow and develop physically, mentally and economically as an independent self sufficient female adult”, the order added.