SC rewrites 77-yr law, says sex with under-18 wife is rape
In a landmark judgment, the Supreme Court junked a 77-year-old law on Wednesday and ruled that sex between a man and his wife below 18 years of age will count as rape and the husband can face up to 10 years’ imprisonment under the Indian Penal Code or even a life term under the POCSO (Protection of Children from Sexual Offences) Act of 2012.
A bench of Justices Madan B Lokur and Deepak Gupta, in separate but concurrent judgments running to 126 pages, ruled that IPC Section 375(2), which exonerated a husband of rape charges even if he had sex with his wife who is in the age group of 15-18 years, was unconstitutional and against several other laws, including the POCSO Act. By this ruling, the SC has established a uniform 18 years as age of consent, age of marriage and the exception to rape under Section 375 of IPC, which had been different ever since the IPC came Justice Lokur said: “The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. This artificial distinction is arbitrary and discriminatory and is definitely not in the interest of the girl child.”
Despite Parliament enacting the Prevention of Child Marriage Act, 2006, which penalises a man marrying a girl below 18 years of age with a jail term up to three years, a number of child marriages are solemnised secretly. With this SC ruling, men marrying girls below 18 and having sex with them could face rigorous imprisonment of up to 10 years under IPC or even life term under POCSO Act.
The Centre had said, first, the minor wife, by consenting to marriage has agreed to sexual intercourse with the husband; second, traditionally child marriage is prevalent in many parts of the country and tradition must be respected; third, the 167th report of the Parliamentary Standing Committee of Rajya Sabha (March 2013) recorded that several members felt that marital rape has potential to destroy institution of marriage.