What the Supreme Court's his­toric judg­ment says about 'sex with mi­nor wife'

The Northlines - - OPINION - ANUSHA SONI

In a land­mark judg­ment, the Supreme Court has crim­i­nalised sex with a mi­nor wife. The ex­cep­tion un­der Sec­tion 375 of the In­dian Pe­nal Code gave im­mu­nity to a hus­band if the wife was above 15 and be­low 18 years of age. Do­ing away with the ex­cep­tion, the court has done a "pur­po­sive" in­ter­pre­ta­tion of the law by rather strik­ing it down. Pur­po­sive in­ter­pre­ta­tion means when the court with­out strik­ing down a cer­tain pro­vi­sion gives it a mean­ing which is dif­fer­ent than the lit­eral mean­ing of the law. The bench led by jus­tice Madan B Lokur said the present ex­cep­tion is con­trary to Ar­ti­cle 21 which is about the fun­da­men­tal right to life and also con­tra­dic­tory to the pro­vi­sions of Pro­tec­tion of Chil­dren from Sex­ual Of­fences Act (POCSO) un­der which the age of con­sent is 18.

While read­ing out the judg­ment, the court said the dis­tinc­tion that the law makes per­tain­ing to age of con­sent between a mar­ried and an un­mar­ried girl is ar­ti­fi­cial. The court is of the view that the rights of girl child must be ac­tively pro­tected by the state. Jus­tice Lokur said that such mar­riages also con­trib­ute to child traf­fick­ing.

Us­ing strong words the court

has needs which aus­pi­cious"Ak­shaya­said to curbthat hap­pen Tri­tiya"the child oc­ca­sion govern­ment mar­riage­son in many the of part­sno words,of the jus­tice coun­try. Lokur Minc­ing­said that the state can­not turn a blind eye to plight in the name of so­cial re­al­ity. The judg­ment also brings in har­mony con­flict­ing laws on the age of con­sent. While the IPC said a man can have sex with his un­der­age wife 15 or above, even with­out con­sent, POCSO pre­scribed the age of con­sent to be 18. The Supreme Court also clar­i­fied that right now it's not de­cid­ing on the is­sue of mar­i­tal rape when the hus­band and wife are both above the age of 18, as the ques­tion wasn't brought be­fore the court. Can you legally marry un­der 18? Is mar­riage with a mi­nor­le­gal?The mar­riages la­wor between again­st­deals mi­nors child with pre­ven­tion­a­gainst those and who pun­ish­ment fa­cil­i­tate child mar­riages, but mar­riages between mi­nors are not void ab ini­tio (hav­ing no le­gal force from the be­gin­ning) un­less upon be­com­ing a ma­jor one of the par­ties seek for the an­nul­ment of mar­riage within a pre­scribed pe­riod. So legally one can marry even when one of the par­ties or both is/are be­low 18 years of age.

There is an­other di­men­sion re­lated to the per­sonal laws here. The Mus­lim Per­sonal Law pre­scribes the "age of pu­berty" to be con­sid­ered as the "age of mar­riage" which can be any­thing from 8 years to 18 years. So such mar­riages will con­tinue, but can­not be con­sum­mated till both the par­ties turn adults. It's not just one per­sonal law, mar­riages in In­dia are not a civil in­sti­tu­tion, but have rather re­mained un­der the purview and aegis of re­li­gion. Hence, the age of mar­riage shall vary across re­li­gions. How­ever, the crim­i­nal law ap­plies across re­li­gions and so does POCSO.

So, now ir­re­spec­tive of any re­li­gion, a mar­riage can­not be con­sum­mated if the wife is a mi­nor. Though the anom­alies of per­sonal law will con­tinue to cre­ate de­fence.

To­day's judg­ment is just one of the many steps that the Supreme Court has taken to bring the laws into har­mony. Much still needs to be ra­tio­nalised and re­formed to do away with the le­gal co­nun­drums.

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