New Delhi: In a landmark decision, the Supreme Court on Wednesday criminalised sex between a man and his underage wife provided the woman files a complaint within a year. The legal age of consent has been fixed at 18 years for all girls.
“If a minor wife complaints of forced sexual intercourse within a year of marriage, police needs to take action,” the court said hearing a petition that called for the scrapping of a provision in the rape law that allowed a man to have sex with his underage wife even without consent.
“Exception in rape law is discriminatory, capricious and arbitrary … It violates bodily integrity of the girl child,” said the court.
The order also comes at a time when the court is hearing petitions calling for marital rape to be declared a crime.
The verdict would have prospective effect and have no bearing on marriages already solemnised, the court said, addressing concerns of the government.
Defending the rape law exception, the government had told the court during an earlier hearing that India had 23 million child brides and criminalising the “consummation of the marriages” as rape would not be appropriate.
Rape and child marriage laws of India disagree on the age of consent. Section 375 of the Indian Panel says sex with a girl less than 18 is rape but it makes an exception allowing sex with a wife who is 15 or above, saying it is not rape even if it is without her consent.
Marriage law in India does not allow a woman to be legally married before the age of 18. Consensual sex with a minor outside of marriage is also considered rape by the law.
“Given all of this,” Times of India quoted an NGO’s lawyer Gaurav Agrawal as arguing, “We see a girl under 18 years of age as a child in POCSO Act, but once she is married, she is no more a child under the exception 2 to Section 375 of the IPC. This is totally inconsistent. The truth is that a girl under 15 is still a child, married or not. The parliament has to protect the child.”
The government had said in an affidavit that 46% of the married women between the ages of 18 and 29 had their wedding ceremony before they were 18.
