Sex with minor wife, despite consent, is rape

The Supreme Court DH File

The Supreme Court DH File

A girl child below the age of 18 can not be treated as a commodity having no say over her body or someone who has no right to deny sexual intercourse to her husband, the Supreme Court held. Her willingness or consent was of no concern. A senior government functionary said here that the apex court order will help curb child marriages as it has created the needed "legal deterrent". The ruling, which has removed the discrepancies in the rape law, comes as a victory for all those fighting for child rights and justice and is expected to go a long way in checking child marriages.

Further, the constitutional validity of the Exception was challenged as being violative of Articles 14 & 15 (3) on the premise that Exception 2 to section 375 arbitrarily discriminates between minor girls on the basis of their marital status and is not in consonance with the obligation of the State to enact beneficial legislation making special provisions for women and children. The Prohibition of Child Marriage Act (PCMA) too prescribed the marriageable age for girls as 18.

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The apex court read down a provision in the Indian Penal Code of 1860 exempting males from being tried for rape if the wives were between the age of 15 and 18 years.

In a statement, the commission expressed disappointment on observing that despite the absence of Senator Sehar Kamran, mover of the bill, the committee voted against the amendment which suggests increasing the minimum age for girls to marry from 16 years to 18 years.

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The court, however, refrained from dealing with the issue of marital rape of a woman aged above 18. It said if a married girl was over 15 years of age, her husband could not be charged with any offence.

Though child marriage is prohibited, it is not automatically void under India's civil laws. Under the Dissolution of Muslim Marriages Act, 1939, if a minor girl under the age of 15 years is married under Muslim law, she can obtain a decree of dissolution of marriage before she attains the age of 18 years provided that the marriage has not been consummated.

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Countering this, the court said the exception clause "statutorily cancels a girl child's right to decline sexual intercourse with her husband". According to 2011 census, around 49.50 lakh married girls were under the age of 18. "The government tried to somehow legitimise child marriage", Justice Lokur shot back.

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