Child Marital Rape: Supreme Court reads down Exception 2 to Section 375
Oct 11 2017 by Desiree Burns
The order comes at a time when the apex court is already hearing petitions calling for marital rape to be declared crime and a debate over the age of consent. And finally, in case of child marriages, the earlier provision stated that a husband could have sex with a wife who was 15 years or above, with or without her consent.
The Supreme Court has criminalised sex with a minor wife aged between 15 and 18 years.
While the supreme court on October 11 refused to comment on marital rapes in general, its decision on child brides could have ramifications for the matter, which is being heard by the Delhi high court now. "Parliament can not permit the exploitation [in the name of marriage] of a girl child simply because some girls are married at an age less than 18 years".
A bench of Justice Madan B Lokur and Justice Deepak Gupta - in separate but concurring judgements - said the exception was "arbitrary, discriminatory and capricious". It said that before arriving at a conclusion, these aspects have been deliberated upon by Parliament.
It ruled that police should in future prosecute cases of marital rape if the victim was under 18 and registered a complaint within a year of the incident.
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The petitioners prayed that the clause be struck down as it is "violative of Articles 14, 15 and 21 of the Constitution".
Importantly, he pointed out the dichotomy between the impugned Exception under IPC and other statutes like Protection of Children from Sexual Offences Act, 2012 (POCSO), Prohibition of Child Marriage Act, 2006, Juvenile Justice (Care and Protection of Children) Act, 2000.
But the Supreme Court said that contradicted India´s strict laws on the age of consent.
Independent Thought, a "National Human Rights organization working towards equity, justice and mutual respect", filed a petition with the Supreme Court questioning this logic.
The apex court had also observed that child marriage can not go on like this just because this illegal practice was assumed to be legal and has been going on for ages. Ideally, there is no rational nexus in classifying girls under the age of 18 into two groups - those who are married, and those who are not.