By Arifa Khan, Post Graduate College of Law, Osmania University, Hyderabad.

The Supreme Court, in a landmark judgment, affirmed that sexual intercourse with a minor wife is rape, where consent is immaterial. The judgment came on a petition filed by an NGO- Bachpan Bachao Andolan (BBA) run by Nobel Prize winner Kailash Satyarthi to examine the conflict of Section 375 of Indian Penal Code (IPC) with Protection of Children from Sexual Offences (POCSO) Act, 2012. The Court struck down Exception 2 to Section 375 of IPC, which exempts marital rape of girls between the age of 15 and 18 from the purview of rape. The POCSO Act has determined the age of consent to be 18 years which cannot be reduced, the court ruled. The Court Bench, comprising Justice Madan B Lokur and Justice Deepak Gupta, said that the exception to the rape law was contrary to the philosophy of other statutes and violates the bodily integrity of a girl child. The discrimination between a married girl child and an unmarried girl child is artificial. “A child remains a child whether she is described as a street child or a surrendered child or an abandoned child or an adopted child. Similarly, a child remains a child whether she is a married child or an unmarried child or a divorced child or a separated or widowed child.”, Justice Lokur wrote.

The Exception 2 to Section 375 was a blanket liberty and freedom to have non-consensual sexual intercourse with the minor wife. The willingness or consent of the minor wife was of no concern. The husband in such cases was not punished for rape. It had even the effect of turning a blind eye to trafficking of the minor girl children in the guise of marriage. The apex court held that the exception clause will henceforth be “meaningfully” 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.” This amendment will be effective right away.  The couples that are married before it came into force will be made to live separately till the girl attains majority, i.e., until she is 18 years of age.

A study, published by the National Commission for Protection of Child Rights and Young Lives based on the 2011 Census, stated that over 20% girls in this country are married before attaining the age of 18. More than one out of every five marriages violates the provisions of the Hindu Marriage Act, 1955. A child bride is more than doubly prone to health problems than a grown-up woman. It also revealed that, in India, Rajasthan has the highest incidence of child marriages. The study stated that 2.5% of the girls in Rajasthan got married before the legal age of 18. Thirteen other States, including Meghalaya, Arunachal Pradesh, Bihar, Uttar Pradesh, Gujarat, Madhya Pradesh, West Bengal, Maharashtra and Karnataka, reported higher percentage of child marriages among boys than the national average.

However, Karnataka decided to take an authoritative step forward to curb this evil and amended the Prohibition of Child Marriage Act (PCMA) to make child marriage automatically void and providing the rest of India the “most obvious and appropriate resolution of the conflict” between the Indian Penal Code and the various laws regarding child marriage. In Karnataka, the husband of a girl child would be liable for punishment for child marriage under the amended PCMA; for penetrative sexual assault or aggravated penetrative sexual assault under the POCSO Act; and if the husband and the girl child are living together in the same or shared household, for rape under the IPC.

A girl child below the age of 18 cannot be treated as a commodity having no say over her body or someone who has no right to deny sexual intercourse to her husband, the Supreme Court held. “Human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance,” a Bench of Justices Madan B. Lokur and Deepak Gupta observed.

The Centre, however, said that it justifies the exemption in the Section 375 of IPC related to when rape is not a crime. In an affidavit, the Centre said the exception cannot be struck down when child marriage, even though it was banned in 2006 was still prevalent in India and therefore the exception was required to protect husband and minor wives in such marriages. Marriage of minors is an old custom in India, practised by all social groups. The Union government was deliberating on striking down exception 2 to Section 375 of the IPC in the Ministry of Home Affairs (MHA) and the Women and Child Development (WCD) Ministry after an NGO Bachpan Bachao Andolan (BBA) moved the Court. The Home Ministry, under the United Progressive Alliance (UPA) government filed a counter affidavit explaining the exception 2 of the Section 375 against striking down this provision. The National Democratic Alliance government adopted the UPA’s affidavit and supported the IPC provision.

The affidavit said, “It is true that the minimum age of marriage of a female is 18 years and punishment has been provided in the Prohibition of Child Marriage Act, 2006 to discourage child marriages. However, it is also a fact that a large section of the Indian society, which is living in rural areas, continues to follow such practices as part of their tradition. As per the data collected in National Family Health Survey-III, 46% of women between 18-29 years in India were married before the age of 18. It is also estimated that there are 23 million child brides in the Country. Hence, criminalising the consummation of a marriage union with a serious offence such as rape would not be appropriate and practical.”

Though child marriage is prohibited, it is not automatically void under India’s Civil Laws. The Court criticised the fact that child marriages are only voidable, that is, the burden is placed on the child bride to approach a Court to declare her marriage a nullity. She has to do this within two years of attaining majority, which is by the time she is 20 years old. If not, the marriage continues.

The Court slammed the government for trying to “somehow legitimise” the exception clause. Instead of attempting to effectively implement and enforce the Anti-Child Marriage Law, the government diluted it by creating artificial distinctions. The government had urged the Court not to tinker with the exception clause as it was introduced keeping in view the age-old traditions and evolving social norms. The government had argued that the “practice of child marriage cannot be wished away and, therefore, legislature in its wisdom has thought it fit not to criminalise the consummation of such child marriages”. Countering this, the Court said that the exception clause “statutorily cancels a girl child’s right to decline sexual intercourse with her husband.” One cannot govern what happens inside the bedroom of a married minor. Her right over her body was being taken away by the exception of Section 375. The Court knocking down this exception is a step towards protecting these minor wives and to some extent reducing the wrongful age-old tradition of child marriage.