Sex with minor wife is rape, says Supreme Court in landmark judgment

Supreme Court of India

Supreme Court of India

The court had earlier reserved the verdict while questioning the Centre on how the parliament could create an exception in law declaring that intercourse or a sexual act by a man with his wife, aged between 15 and less than 18 years, is not rape when the age of consent is 18.

Indian child protection laws already prohibit an adult from having sex with someone below the age of 18. An emboldened Supreme Court bench balked at nothing in its determination to sweep away the very basis of this jugglery of getting children married, usually at the cost of their higher education, by striking at the very root of the clause that protected grooms who had sex with underage wives. POCSO specifically bars all sexual activities with girl children below the age of 18 years and the offence is aggravated if the accused is related through marriage.

However, the age of consent is 18 years.

The Supreme Court held that the Exception should be read down as: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years, is not rape".

The ruling came following a public interest litigation filed in the apex court that sought to allow a married girl below 18 years of age to lodge a police report - known as First Information Report or FIR - if she was forced to have sex with her husband.

The court rejected the Union government's plea that since a large number of child marriages took place in the country, it would not be proper to criminalize the consummation of such matrimonial alliances.

The petition referred to various provisions of the Protection of Children from Sexual Offences Act (POSCO), 2012 that were at odds with Section 375.

However, the law - a toothless one - has failed spectacularly, and child marriages persist in rural areas, despite efforts of states to weed out the phenomenon.

"The judgment will boost the "Beti Bachao, Beti Padhao" campaign and girls will be saved from abuse after this verdict".

Wednesday's ruling ended the legal discrepancy. This legal position was challenged before the Supreme Court by a NGO named "Independent Thought" for being unconstitutional by virtue of being arbitrary, discriminatory and devoid of dignity as it would render the same violative of the fundamental rights under Articles 14, 15 and 21 of the Constitution of India. "The right of a girl child to maintain her bodily integrity is effectively destroyed by a traditional practice sanctified by the IPC", he said.

An analysis of the most recent national census by the data journalism initiative India Spend estimated that almost 12 million Indian children were married before the age of 10.

The results can be devastating, with girls dropping out of school to cook and clean for their husbands and suffering health problems from giving birth at a young age.

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