A progressive case law
India’s Apex Court declaring sex with minor wife aged between 15 and 18 years as a criminal act empowers the girl child who is forced into child marriage to resist being exploited for sex.
Clearly, the order is a progressive step that deserves to be commended. The court said that immunity cannot be granted to a husband who is having sexual intercourse with his wife in this age group. The apex court made it clear that Section 375 of the IPC, which defines the offence of rape, and has an exception clause that says intercourse or sexual act by a man with his wife, not below 15 years, is arbitrary and is violative of the Constitution. However, the age of consent is 18 years.
The apex court said the exception in the rape law was contrary to the philosophy of other statutes and violates the bodily integrity of a girl child.
A bench comprising Justice Madan B Lokur and Deepak Gupta also expressed concern over the prevalent practice of child marriage in the country and said social justice laws were not implemented with the spirit with which they have been enacted by Parliament.
The bench clarified that it has not dealt with the issue of marital rape as it was not raised before it by respective parties. However, it asked the Centre and the states to take proactive steps to prohibit child marriage across the country while voicing concern over thousands of minor girls being married in mass wedding ceremonies. Predictably, while some obscurantist priests dealing with marriages may be inclined to criticise the judgment, there can be little doubt that apex court order meets the ends of justice and must be uniformly applied to all religions.
The court has, however, made it clear that it cannot be applied retrospectively. A petition by NGO Independent Thought had challenged the exception clause (2) under Section 375 IPC. The petitioners had contended that it is against the interest of the girl child as well. The court said that there can be no legal protection given under Section 375 (2) of the IPC.
The petitioners prayed that the clause be struck down as it is ‘violative of Articles 14, 15 and 21 of the Constitution’. While hearing the plea, the court had asked the Centre how Parliament could create such an exception in the law. The Centre replied that doing away with this exception would open up the domain of marital rape, which does not exist in India.