Age of consent: Protection for child brides.

Age of consent: Protection for child brides.

Age of consent 18; sex with minor wife criminal, rape: SC delivers landmark ruling

SC ruling on criminalising sex with wife below 18 protects child brides

Agency Report | New Delhi | 11 October, 2017 | 09:00 PM

Supreme Court has ruled that sex with any minor - including within a marriage - is rape. The landmark ruling closes a legal loophole that had protected men from legal punishment if their wife was under 18 years old. Sex with or without the consent of a girl under 18 years old is a crime. Millions of young girls are married away, especially in poor rural areas. The ruling overturns a provision in the penal code that allowed sex with a girl over 15 years-old if the couple was married. That penal code provision was in violation of laws establishing the legal age of marriage at 18 for women.

The Supreme Court on Wednesday said sex with wife below 18 years of age is rape, striking down the provision of criminal law that permitted sex with a wife aged between 15 and 18.

The husband is liable to be prosecuted if the woman files a complaint within a year of the sexual act, the Supreme Court said.

The landmark order comes at a time when the apex court is already hearing petitions calling for marital rape to be declared a crime and a debate over the age of consent.

The court, however, made it clear that it was not saying anything on the larger issue of marital rape even though the verdict would have a prospective effect on that.

Rape and child marriage laws of India disagree on the age of consent. Section 375 of the Indian Panel says sex with a girl less than 18 is rape but it makes an exception allowing sex with wife who is 15 or above, saying it is not rape even if it is without her consent.

A bench of Justice Madan B. Lokur and Justice Deepak Gupta — in separate but concurring judgements — said the exception was “arbitrary, discriminatory and capricious”.

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

Describing as artificial the distinction between a minor girl and a minor girl in child marriage, Justice Lokur said it was contrary to the philosophy of many statutes like Prohibition of Child Marriage Act and Protection of Children from Sexual Offences Act.

The court also urged the Centre and the state governments to take proactive steps to discourage child marriages.

Justice Gupta said the exception carved out in Section 375 of the Indian Penal Code was violative of Article 14, ArticLe 15 and Article 21 of the Constitution.
The Supreme Court’s landmark ruling criminalising sex with wife below 18 has cleared an inconsistency in laws that differed over the legal age of sexual consent.

While Section 375 of the Indian Penal Code (IPC) allows sexual intercourse with wife aged between 15 and 18 years, the child abuse laws under the Protection of Children from Sexual Offences Act (POCSO) sets the age of marriage as 18 for girls and 21 for men. This meant that a husband was allowed to have sex with his wife with or without consent even if she is above 15 and below 18.

The Supreme Court, however, struck it down and declared that the IPC provision that lowers the legal age for sex to 15 if the girl is married was unconstitutional.
The inconsistency:

The IPC Section 375 makes an exception clause, permitting sexual intercourse with the wife, under 15.

“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape,” according to the clause.

However, the POCSO Act, which came into force on November 14, 2012, characterises a child as “any person below the age of 18 years” and comprehensively defines “penetrative sexual assault”, “sexual assault” and “sexual harassment”.

Penetrative sexual assault, according to the act, is punished with imprisonment of not less than seven years which can be extended to imprisonment for life.

However, the government, responding to a plea filed before the apex court by the NGO Independent Thought, defended the Section 375 exception in the Supreme Court in August.

The government said a man forcibly having sex with his wife, even if she is above 15 and less than 18, should not come under IPC Section 375 because it is to “protect the institution of marriage”.

The NGO’s founder and lawyer Vikram Srivastava said that the inconsistency in the laws had categorised girls into two.

For those not married, the age of sexual consent was 18. But a husband was allowed to have sexual intercourse with his wife if she is above 15, irrespective of her consent, Srivastava said.

“The provision gave protection to men marrying girls less than 18. That protection has been taken off. Now, they can be charged as the Supreme Court rules give a universal definition of the age of (sexual) consent.”

Srivastava said the verdict would boost the “Beti Bachao, Beti Padhao” campaign even as the government’s stand on the age of sexual consent ran contradictory to what it had been saying because it discriminated against a girl child who is forced into marriage before achieving the age 18. (IANS)