Published: Fri, October 13, 2017
World | By Melba Underwood

Sex With Minor Wife Amounts To Rape, India's Top Court Rules

Sex With Minor Wife Amounts To Rape, India's Top Court Rules

Indian Supreme Court has criminalised sexual intercourse with a girl below18 years of age regardless if the couple is married.

The bench headed by Justice Madan B Lokur had on September 6 had reserved its order in the case.

The Bench said, "There is no question of a girl child giving express or implied consent for sexual intercourse...those days are long gone when a married woman or girl could be treated as subordinate to her husband or at his beck and call or as his property". But if Wednesday's verdict is anything to go by, higher courts are increasingly recognising that the notion of consent needs to be redefined to do justice to women's rights. "The right of a girl child to maintain her bodily integrity is effectively destroyed by a traditional practice sanctified by the IPC".

Such an "arbitrary and discriminatory" distinction "is definitely not in the best interest of the girl child", he said, adding it was also contrary to the Constitution's Articles 15 (3) and 21 and commitments in global conventions.

The court also ruled that lowering the legal age for sex to 15, if the girl is married, would be illegal and unconstitutional, Srivastava said.

"The judgement says that, if a man has sexual intercourse with a wife who is below 18 years, it is an offence", Srivastava said.

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Justice Lokur said the exception has no rational nexus with the objective sought to be achieved by the different statutes.

Such a girl child has no recourse to law under the provisions of the IPC...

The bench noted that the artificial distinction was 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 global conventions.

India's Supreme Court has made a ruling that could deter people from marrying off their young children.

"Whether or not it [child marriage] is a social reality, for 70 years we have not been able to remove it", the Bench had observed. "Therefore, a child bride is more than doubly prone to health problems than a grown-up woman", it said. An estimated 12 million Indian children under the age of 10 are married, with the majority of girls from poor, rural families. "When the age was being raised in all other laws, the age under Exception 2 should also have been raised to bring it in line with the evolving laws especially the laws to protect women and the girl child aged below 18 years", he said. The apex court further stated that the minor wife can lodge a complaint against her husband within one year. The other inconsistency is with the prohibition of the child marriage act, on one hand, the law says that child marriage is illegal, while on the other hand, the same law provides a child marriage exception to rape, the advocate argued. "But, contrarily, the rape of married girl child (called "aggravated penetrative sexual assault" in the POCSO Act) is made an offence for the goal of POCSO Act".

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