Child Marital Rape: Supreme Court reads down Exception 2 to Section 375

Supreme Court

"We are left with absolutely no other option but to harmonise the system of laws relating to children", Justice Madan Lokur said in the decision.

"Surely, the Union of India can not be oblivious to the existence of the trauma faced by a girl child who is married between 15 and 18 years of age or to the three pro-child statutes and other human rights obligations. Therefore, more than one out of every 5 marriages violates provisions of the Prohibition of Child Marriage Act and the Hindu Marriage Act", it said. "Exception in rape law is discriminatory, capricious and arbitrary".

"Exception 2 in Section 375 of the IPC (Indian Penal Code, the main criminal code of the country) granting protection to the husband is violative of the constitution and fundamental rights of the minor bride", the verdict stated.

The highest court in that nation on Wednesday struck down a legal clause allowing men to have sex with their underage wives, as long as the girls were over 15, the BBC reported.

He asked if a child marriage, which is admittedly "an evil" and also a criminal offense, can be "set up as an exception in a case of a girl child, who is subjected to sexual intercourse by her so called husband".

These discrepancies, the apex court noted, have created "an unnecessary and artificial distinction between a married girl child and an unmarried girl child".

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The bench noted that the artificial distinction was contrary to the philosophy and ethos of Article 15 (3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in global conventions.

"We support the judgment of the Supreme Court".

"Whether or not it [child marriage] is a social reality, for 70 years we have not been able to remove it", the Bench had observed. But one big vulnerability remained for child brides. All these costs eventually add up and apparently only to support a pernicious practice, it said.

However the age of consent in the country is still 18 and marital rape isn't an offence, so married couples over 18 can not press rape charges on their spouse, according to the BBC.

BBC reporter Geeta Pandey said a married girl is unlikely to have the courage to speak out against her husband, particularly if she has been married with parental consent. However, the exception clause retained the age of consent for married girls as 15 years, depriving married girls between the ages of 15 to 18 of legal protection against forced sexual intercourse. "Civil society can do just so much for preventing such child marriages but eventually it is for the Government of India and the State governments to take proactive steps to prevent child marriages so that young girls in our country can aspire to a better and healthier life." the court said in a report. "If this is rape then girl's father is also a culprit".

A bench of Justices MB Lokur and Deepak Gupta, which criminalised sex with a minor wife in a landmark verdict on Wednesday, referred to a study conducted on child marriages, based on 2011 census.

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