India's Supreme Court Rules That Sex With An Underage Wife Is Rape

  • India's Supreme Court Rules That Sex With An Underage Wife Is Rape

India's Supreme Court Rules That Sex With An Underage Wife Is Rape

India's Supreme Court on Wednesday struck down a decades-old clause in the country's rape laws permitting a man to have sex with his wife if she is aged between 15 to 18 - ruling that it was rape, and therefore a criminal offence.

This provisional exception exempted marital rape of girls between 15 and 18 years of age by their husbands.

The court was in session and the ruling was on a public interest litigation (PIL) by an NGO, Independent Thought, that challenged the exception to Section 375.

The Supreme Court ruled Wednesday that sexual intercourse with a girl younger than 18 is rape.

"The minor wife can complain against the husband within one year", it said.

The verdict also goes on to cite excerpts from the Justice Verma report that state how the marital rape immunity has been withdrawn in most major jurisdictions including in England and Wales, whose common law has been adopted by India.

Justice Gupta too was not impressed with the government justifying child marriage on the ground that it was a traditional practice which must be respected and that criminalising marital rape could destroy the institution of marriage. According to Girls Not Brides - a coalition of NGOs working to end child marriage - 47% of Indian girls are married by the age of 18. "How could marriage be used as a criteria to discriminate against girls?"

This article has been adapted from its original source.

It was also clarified that the court had not gone into the issue of marital rape since it was not the subject matter of the case before the court.

It also referred to the provisions of the Protection of Children from Sexual Offences Act (POCSO), 2012, which were contrary to the IPC provision. Until now, an exception to Section 375 of the Indian Penal Code, which defines various circumstances of rape, protected men who engaged in sexual relations with women aged between 15 and 18, as long as they were married to them. Justice Lokur said that such marriages also contribute to child trafficking. While this view has been taken in context of marital rape of girl child, the Petitioners before the Delhi High Court seeking criminalization of marital rape could use this to their advantage.

Mass child marriages occur in many parts of the country on days considered auspicious in the Hindu calendar, such as the Akshaya Tritiya festival.

In December 2015, MoS for Home Affairs Kiren Rijiju had declared that the government is working on putting forward a "comprehensive" legislation that will criminalise marital rape.

Observing that the distinction between rape under Section 375, IPC and aggravated penetrative sexual assault under the POCSO Act, was merely notional and linguistic and not real, the Supreme Court held that the POCSO Act would override based on Section 42-A.