A pro­gres­sive case law

The Northlines - - OPINION -

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.

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