Amit Anand Choudhary | TNN | Updated: Sep 1, 2017, 08:24 IST
• The Indian Penal Code (IPC) protects any man having sexual intercourse with his minor wife above 15 years of age, the Supreme Court said.
The SC’s observations came in a case where an NGO has challenged the exception for sex in marriages where the wife is between 15 and 18 years of age
NEW DELHI: Marriage is not an exemption under the law to protect children from sexual offences even though marital rape is not recognised as a crime+ and the Indian Penal Code (IPC) protects any man having sexual intercourse with his minor wife above 15 years of age, the Supreme Court said on Thursday.
The SC’s observations came in a case where an NGO has challenged the exception for sex in marriages where the wife is between 15 and 18 years of age.
The provision that sex in a marriage where the wife is not less than 15 is not rape has been defended by successive governments on the plea that this reflects a social reality.
The NGO Independent Thought has argued that the husband should be prosecuted under the Protection of Children from Sexual Offences (POCSO) Act. A bench of Justices Madan B Lokur and Deepak Gupta, examining the validity of the provision that “sexual acts by a man with his own wife, not being under 15 years of age, is not rape”, said cases of a minor wife could well be dealt with under the POCSO law and proceedings could be initiated against the husband.
While the number of marriages where the wife is between 15 and 18 years — the latter being the legal age for matrimony for girls — is reducing, it still constitutes a significant number.
The national family health survey of 2015-16 shows that the percentage of women in the 20-24 age group who married before they turned 18 has declined in states like Bihar, Goa, Haryana, Karnataka, Madhya Pradesh, Tamil Nadu, Uttarakhand and West Bengal from 2005-06. Apart from the issue of minor brides+ , the demand that marital rape be made an offence is also being heard in the Delhi high court.
The court was hearing a PIL filed by Independent Thought seeking direction for fixing the age of consent of a wife at 18 years for having sex with her husband instead of 15 as of now.
It challenged the constitutional validity of the amendment to Section 375 (rape) of the IPC, which makes an exception on age of consent of the wife for sex.
Advocate Gaurav Agrawal, appearing for the petitioner, told the bench that POCSO was a special act meant to protect the rights of kids and it would override the provision of the Indian Penal Code that provided an exception in case of child marriages.
My comment”AS rightly pointed out by Advocate by the petitioner
The NGO, represented by advocate Gaurav Agarwal, said the statutory exception to rape was violative of right to life, personal liberty, equality and is discriminatory.
The Exception is part of the Criminal Law (Amendment) Act of 2013 and is contrary to the anti-child sex abuse law, Protection of Children from Sexual Offences Act of 2012 (POCSO).
The Bench is hearing a petition filed by NGO Independent Thought challenging the Exception 2 to Section 375 (rape) of the Indian Penal Code, which permits “intrusive sexual intercourse with a girl child aged between 15 and 18 only on the ground that she is married.”
Mr. Agarwal argued that the law “violates the health of not only the girl child concerned, but also generations to come.”
He said society must go forward and not get stuck with what was the social norm over 70 yearsago.
Education and economy:
Because they are married early, little or no focus is given to their education, going grossly against the adage, “educate a woman and you educate a family, educate a family and you educate a nation.” Pulling out of the future generations from schools perpetuates the cycle of poverty and thereby, curtails the overall economic growth of the nation. Women with higher levels of schooling are less likely to marry early.
Sexuality and violence:
Young girls with low levels of education are more likely to experience violence by an intimate partner. A young girl who is still struggling to understand her own anatomy is forced to make conjugal relations and often show signs of post-traumatic stress and depression owing to sexual abuse by her older partner. Neither their bodies are prepared nor their innocent little minds. Forced sexual encounters lead to irreversible physical damage. The psychological damage cannot even be comprehended.
The girls are three times more likely to experience marital rape. The girls who marry after 18 years are more likely to talk to their husbands about contraception, discuss when to have children and how many. Young brides face a higher risk of contracting HIV and other sexually transmitted diseases owing to her marriage with an older man with more sexual encounters.
Young girls who are less than 15 years are five times more likely to die during child birth than those in the 20s. The infant mortality rate is very high because the young body of a woman is biologically not capable of maternity.
Owing to their tender age, some of them are sexually exploited by other men in the family and they are too scared to go out and complain. Some of the girls who marry young also join the bandwagon of perpetuating cruelty against women. In the absence of proper education, little do they know that the gender of a child depends on the father and not the mother. Sex determination and female foeticide continue, for a girl child would possibly further add to their woes.
Girls who marry at a tender age are more likely to believe that it is justified for a man to batter his wife than her peers who marry after attaining adulthood.
Prohibition of Child Marriage Act, 2006
The act includes punitive measures against those who perform, permit and promote child marriage. It also provides for annulment of a child marriage and gives a separated female the right to maintenance and residence from her husband if he is above 18 or in-laws if he is a minor until she is remarried. This Act came into effect in January 2007.
Unless and until the rural people are enlightened about the horrible impacts of early marriage, no laws will be able to change the present appalling situation that the nation is facing. Also, stress needs to be put on education, gender equality and changing the patriarchal mindset.
IN view of the above I conclude that not only the child Marriages are against
POSCO-Protection of children from Sexual Offences Act and also against Child Marriage Act 2006and also violative of Right to Equality(Article 14) Right to life and Personal liberty(Article 21) oF THE Indian CONSTITUTION and highly discriminatory but the Indian governments taking shelter under IPC statutory exception which says A minor child between ages of 15 and 18 having intrusive sexual inter course with her older husband or marital rape is not a crime it reflects social reality. This Statutory exception should be immediately repealed and in its place an amendment should be made by Parliament to IPC that Marital Rape of girls between girls between 15 and 18 years is an offense to The IPC is and use deterrent Jail term of at least 7 years punishment for parents of girl child who perform forced child marriages of children of not only between 15 and 18 and even younger girls with much older men.Also as I’ve discussed above child marriages are proving to be highly risky for health of young mothers resulting in maternal mortality, contracting SEXUALLY TRANSMITTED DISEASES THROUGH THEIR MUCH OLDER PARTNER WHO MAY BE A PROMISCUOUS IN SEXUAL ENCOUNTERS, CHILD BIRTH DEFECTS, LOW BIRTH WEIGHT BABIES .Trauma for young mother through forced-marital rape.,domestic violence etc.Instead Governments both at the centre and State should focus on education of girls of high quality up to Graduation free of cost for weaker sections.Once the Governments take the above measures we can eradicate child marriages in India.