Sex with minor wife is rape: SC ruling puts rape and child protection laws in sync

A measure long overdue finally becomes the law of the land. In landmark ruling, the Supreme Court of India on Wednesday did what the legislators have shied away from doing for many years — it has criminalised sex between a man and his minor wife (girl child).

The apex court has not just assailed and set aside the definition of rape under the Indian Penal Code (IPC) but has also done away with the unnecessary and artificial distinction between a married girl child and an unmarried girl child in the rape law.

So far, according to the rape law — the age of consent is 18 years, meaning that sex with a minor girl is rape. But unfortunately, in the same breath the law also protected sexual intercourse between a man and his wife being a girl between 15 and 18 years of age. It took away from a girl child who is not mentally and physically mature enough her right to decline sex with her husband.

Before this verdict there also existed duality between the rape law and Protection of Children from Sexual Offences Act (POCSO). Having sexual intercourse with a girl child between 15 and 18 years of age, the husband of the girl child is said to have not committed rape as defined in Section 375 of the IPC but is said to have committed aggravated penetrative sexual assault in terms of Section 5(n) of the POCSO Act.

Despite progressive legislations like POCSO and Juvenile Justice Act, which protect rights of children, girl child/child brides who otherwise are treated as minors under various laws were afforded no protection under the IPC.

What is also appalling is that while the government took steps to do away with the social evil of child marriages and enacted a law, it did not bring corresponding changes in the rape law as both the laws disagreed on the age of consent.

Now the top court has upheld the rights of girls who are married between the ages of 15 and 18 years and in doing so has harmonised the IPC with POCSO Act, JJ Act and the Prohibition of Child Marriage Act.

What this judgment has achieved is that it has come to the rescue of girl child or child brides who would have been otherwise degraded, humiliated and destroyed. According to government data, 46% of women in India between the ages of 18 and 29 years were married before the age of 18 years. It is also estimated that there are about 23 million child brides in India.