10-year-RI, life term for sex with mi­nor wife

The apex court’s land­mark de­ci­sion to amend Ex­cep­tion 2 of Sec­tion 375 of the IPC would now make such males li­able for pros­e­cu­tion and strin­gent pun­ish­ment

The Asian Age - - Nation -

New Delhi, Oct. 12: The Supreme Court judg­ment crim­i­nal­is­ing sex­ual in­ter­course by a man with his mi­nor wife can at­tract a jail term of 10 years un­der the In­dia Pe­nal Code or even a life term un­der the Pro­tec­tion of Chil­dren from Sex­ual Of­fences (Pocso) Act.

The apex court’s land­mark de­ci­sion to amend Ex­cep­tion 2 of Sec­tion 375 (def­i­ni­tion of rape) of the IPC, which had ear­lier ex­empted hus­bands from be­ing tried for rape for hav­ing sex­ual re­la­tions with wives of 15 to 18 years of age, would now make such males li­able for pros­e­cu­tion and strin­gent pun­ish­ment.

The amended pro­vi­sion now reads: “Sex­ual in­ter­course or sex­ual acts by a man with his own wife, the wife not be­ing un­der eigh­teen years of age, is not rape.”

The court high­lighted the in­con­sis­ten­cies in two pe­nal laws say­ing as per the Ex­cep­tion 2 to Sec­tion 375 of IPC, a man’s sex­ual in­ter­course with his wife be­tween the age group of 15-18 was not rape but at the same time it is an of­fence of ag­gra­vated pen­e­tra­tive sex­ual as­sault and pun­ish­able un­der Sec­tion 6 of the Pocso Act.

The bench headed by Jus­tice Madan B. Lokur said that as per Sec­tion 42 A of Pocso Act, if there was any in­con­sis­tency be­tween IPC and Pocso, the lat­ter would pre­vail.

“Ex­cep­tion 2 to Sec­tion 375 of IPC, which makes sex­ual in­ter­course or acts of con­sen­sual sex of a man with his own wife not be­ing un­der 15 years of age, not an of­fence, is not found in any pro­vi­sion of Pocso.

“There­fore, this is a ma­jor in­con­sis­tency be­tween Pocso and IPC. As pro­vided in Sec­tion 42A, in case of such an in­con­sis­tency, Pocso will pre­vail. More­over, Pocso is a spe­cial Act, deal­ing with the chil­dren whereas IPC is the gen­eral crim­i­nal law. There­fore, Pocso will pre­vail over IPC and Ex­cep­tion 2 in so far as it re­lates to chil­dren, is in­con­sis­tent with Pocso,” the bench also com­pris­ing Jus­tice Deepak Gupta said.

The bench also ob­served that the ex­cep­tion 2 of the Sec­tion 375 of IPC cre­ates a dis­tinc­tion be­tween a mar­ried girl child and an un­mar­ried girl child with no real ra­tio­nale.

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