Sex with wife below 18 years is rape, rules SC; underlines girl’s right to choose
- In a landmark verdict that strengthens legal protection to the girl child, the Supreme Court today criminalised sexual intercourse by a husband with his wife who is under 18 years of age.
- The decision applies to all faiths and is expected to act as a deterrent against child marriage, which, although prohibited under the law, is still prevalent in many parts of the country.
Background- Section 375 of the Indian Penal Code, which defines the offence of rape, has an exception clause that says intercourse or sexual act by a man with his wife, not below 15 years, is not rape. However, the age of consent is 18 years.
Court Judgement- 1. Sec 375 was inconsistent with other statutes dealing with children such as The Prohibition of Prevention of Child Marriage Act (PCMA), Juvenile Justice Act and The Protection of Children from Sexual Offences (POCSO) Act — all these have fixed the minimum age of the girl child for sexual relations at eighteen.
2.It is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Article 14, 15 and 21 of the Constitution of India”.
Court Observation related to law- 1.The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. The artificial distinction is discriminatory and is definitely not in the interest of the girl child.
2. It was also contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in international conventions.
-Judgment will have “prospective effect” meaning it will not apply to past cases and that cognizance of such offences can be taken only in accordance with the provisions of section 198(6) of the Criminal Procedure Code.
-Does it applies to women at age of 18 or above- The bench, however, clarified that it was not making any observation on “marital rape” of a woman who is 18 years of age and above as the issue was not before the court.
The question whether marital rape should be criminalised is pending before the Delhi High Court where the Centre has filed an affidavit opposing this saying that doing so may destabilize the institution of marriage apart from being an easy tool for harassing husbands.
NFHS observation- 1.National Family Health Survey — 3 (of 2005) which states that 46 percent of women in Indian between the ages of 18 and 29 were married before the age of 18 years.
2. National Family Health Survey-4, 2015-2016.it was found that at the time of carrying out the survey in 2014, amongst women in the age group of 20-24 years, almost 26.8% women were married before they attained the age of 18 years, i.e. more than one out of 4 marriages was of a girl child.”
3. A report based on the 2011 Census and said that it reveals a shocking aspect that girls below the age of 18 years are subjected to three times more marital rape as compared to the grown-up women.