Indian Court Bans Underage Sex in Child Marriages

Supreme Court

A debate on whether or not marital rape should be criminalised in the country has been raging for a while now.

The Supreme Court had made its judgement while hearing a Public Interest Litigation requesting to permit brides below 18 years of age to file FIR if she is compelled to have a physical relation.

The Supreme Court clarified that it has not dealt with the issue of marital rape as it was not raised by respective parties.

The bench a bench of Justices Madan B Lokur and Deepak Gupta said POCSO Act provides that if a person related to a child below 18 years of age commits a penetrative sexual assault on that child, then he would be liable for aggravated penetrative sexual assault.

The petitioners hoped that the clause be smitten down as it is "violative of Articles 14, 15 and 21 of the Constitution". But unfortunately, this has not been done yet. As a result, there are no accurate figures on marital rape.

Indian law has set 18 as the age for women to marry and consent to sex, but there are exceptions and a man was permitted to have sex, even forcibly, with a girl as young as 15, as long as she was his wife. "But how come, a Minor Girl be Legally Married?" asked Aarti. But thanks to this exception in the definition of rape.

The Supreme Court held that the Exception should be read down as: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years, is not rape". But provides an exception saying it is not rape, if the husband has sex with the wife, while she being not under 15 years of age.

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Indian child protection laws already prohibit an adult from having sex with someone below the age of 18.

The verdict also ends tacit acceptance of the exception clause in the IPC provided to child marriages, which was declared illegal and is a punishable offence, though a social reality especially in rural parts of the country, it said.

Importantly, Justice Lokur's reference to observations of the Supreme Court in Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1 that "legislations with pronounced "protective discrimination" aims...potentially serve as double-edged swords" and that such legislations "should not be only assessed on its proposed aims but rather on the implications and the effects" would apply in equal measure to the POCSO Act.

Rape is recognised as an offence against the very nature of consent as well as against the society under the Indian Penal Code. In such case, it would be really hard to differentiate whether the no was a no or just a feeble n.o which could be assumed as a yes, the argument went on. The NGO demanded the apex court raise the bar of below 15 to 18.

In the aftermath of the December 16, 2012 Delhi gang-rape, India's laws on sexual assault were overhauled. It is high time that the government takes that message on board.

"If you do not criminalize sexual intercourse within marriage with a girl that is under 18, you're implying that the Prohibition of Child Marriage Act (PCMA) is not worth enforcing".

Haribhai Parthibhai Chaudhary, the Minister of State for Home Affairs stated in April 2015, "The concept of marital rape, as understood internationally, can not be suitably applied in the Indian context due to various factors, including levels of education, illiteracy, poverty myriad social customs and values, religious beliefs, [and] the mindset of the society to treat the marriage as sacrament".

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