MARITAL SEX WITH MINOR IS RAPE: COURT

But landmark ruling does not address larger issue of marital rape

The Supreme Court, in a landmark judgement, on Thursday ruled that sexual intercourse with a minor wife between 15 and 18 years of age will amount to rape.

It will attract minimum of seven years in jail and the prosecution can be initiated on a complaint by the girl child or even by any other person at her instance within a year of the alleged offence.

Justice Madan B Lokur gives a clear idea of the thrust of the verdict when he says that "...in our opinion, sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not".

Section 375 of the IPC, which defines the offence of rape, has an exception clause that says intercourse or sexual act by a man with his wife, not below 15 years, is not rape. This created a dichotomy as the age of consent for sex is 18 years. The Supreme Court has now struck down and held invalid the exception clause, saying that it was arbitrary and violative of the Constitution.

‘‘The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child,’’ observed Judge Lokur. This "artificial distinction" was arbitrary and discriminatory and definitely not in the best interest of the girl child, he added. The court also said the exception in the rape law was also contrary to the philosophy of other statutes and violates the bodily integrity of a girl child. The two-judge bench expressed concern over the prevalent practise of child marriage and said social justice laws were not implemented with the spirit with which they have been enacted by Parliament. The Centre replied that doing away with this exception would open up the domain of marital rape, which does not exist in India. The Centre’s counsel had referred to the concept of age of puberty among Muslims for the purpose of marriage and said these aspects have been deliberated upon by Parliament before arriving at a conclusion. The bench clarified that it has not dealt with the issue of marital rape as it was not raised before it by respective parties. Justice Gupta, who wrote a separate but concurrent verdict, said the age of marriage was 18 across the board and the exception given in the rape law under the IPC is "capricious, arbitrary and violates the rights of a girl child". The apex court has asked the Centre and the states to take proactive steps to prohibit child marriage across the country. It voiced concern over thousands of minor girls being married in mass wedding ceremonies on the occasion of Akshaya Tritiya. The apex court had also observed that child marriage cannot go on like this just because this illegal practice was assumed to be legal and has been going on for ages.