Supreme Court says sexual relations between man and minor wife is rape

14 October, 2017, 01:19 | Author: Kim Reid
  • Supreme Court on Wednesday said the exception in the rape law was unconstitutional

"If a man has sexual intercourse with a wife who is below 18 years, it is an offence".

"(Child marriage) is prohibited, but we all know the number of children who are married below the age of 18 years".

India's rape laws specifically exclude married couples, which historically meant that even non-consensual sex with a minor could not be classed as rape if it took place within marriage.

One of the main contentions of the petitioner was that the impugned exception violates Article 14 of the Constitution, since it classifies women into two categories based on their marital status but the said classification has no reasonable nexus to the object sought to be achieved.

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In August this year, the Centre had countered the petition by saying that given the "socio-economic realities" around child marriage in India, the exception is needed to "protect the institution of marriage". The government shied away from disturbing the social order despite the same being a social ill. This move will go a long way in discouraging the prevalent practice of child marriage in India.

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.

"I would urge the courts to take cognisance of the predicament of adult women who live in fear of rape or sexual violence at the hands of their spouse and in the security of her home".

A Bench of Justices Madan B Lokur and Deepak Gupta proceeded to read down the lower age prescribed under the said exception from 15 to 18. This inconsistency should have been cured at the inception of POCSO in 2012 itself by way of amendment to section 375 but the failure of the legislature forced the Supreme Court to state the obvious.

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There is, of course, the other argument over how an underage marriage is valid in the first place.

In the historic decision, the Supreme Court on Wednesday stated that sexual intercourse with a "minor wife between the age of 15 to18 would be a criminal offence and the practice would fall under the category of "rape".

"The exception carved out under Section 375 (which defines rape) exempting marital rape for minors is artificial and contrary of Article 21 (right to life) of the Constitution of India", said justice Lokur, while pronouncing the judgment.

A separate challenge to the laws on marital rape is now going through the Indian courts.

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Early marriage is deeply woven into the traditions of many Indian communities, though the "gauna" ceremony, where the wedding in consummated, is usually delayed until the girl reaches puberty. According to POSCO, a physical relationship with a minor constitutes rape and sexual relations between a man and his minor wife are not exempted under this legislation.

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