Outlines of the judgement.
Supreme court of India on Wednesday resolved a decades old legal contradiction by giving a judgement which said that a man having a sexual intercourse with his wife who is a minor i,e. Below 18 years of age is rape.
A Bench at supreme court consisting of justices Prevention of Children from Sexual Offences Act(POSCO)observed that a girl below 18 years of age cannot be treated as a commodity having no rights to deny a sexual intercourse with her husband. Human rights of each and every girl is very much there in the picture whether or not she is married.
Section 375 of Indian penal code which defines Rape says that if a man has a sexual intercourse with a girl with or without her consent who is below 18 years of age is said to have raped the girl and can be prosecuted by her. However, the exception to this clause is that if a man has a sexual intercourse with his wife aged between 15 to 18 years, it does not comes under the definition of a rape. Hence, the man cannot be prosecuted by her.
The verdict was made after a petition filed by ‘Independent Thought’ which is a non governmental organisation working for child rights. The question raised was : where every statute outlaws sexual intercourse with a minor, can sex with a girl of 15-18 years of age by her husband be exempted from the definition of rape?
Justice Lokur, pointing out this injustice towards a girl arising out of her marital status, said- “a child remains a child whether she is described as a street child or a surrendered child or an abandoned child. Similarly, a child remains a child whether she is a married child or an unmarried child or a divorced child or a separate or widowed child. “
The apex court stated that the exception in section 375 of IPC created an unreasonable distinction between girl childs with regards to their marital statuses. The exception challenged the dignity and bodily integrity of a girl child and also covered the crimes such as trafficking which occurred in disguise of a marriage. It was also against the Prevention of Children from Sexual Offences Act(POSCO) which says that sexual assault of a minor (person below 18 years of age as per the act) is a serious offence which would attract a punishment of 10 years of rigorous imprisonment.
Supreme court then held that the exception clause will henceforth be read as-“sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape.”
However, the court has still restrained from commenting on Adult Marital Rape.