Section 375 of the Indian Penal Code (IPC) has defined ‘rape’ and has n narrated the punishment for that. Having sexual relationship with a girl below the age of 18 has been considered as a crime.
However, when a minor is married and having sexual relation with her husband is not a crime. This has been taken as an exception. This is protecting the husband and promoting child marriage by giving legal recognition to a crime based on the marital status.
The judgment of the Supreme Court on October 11, 2017 has clarified on this and has taken an attempt to change this exception.
As per Exception 2 of the Section 375 of the Indian Panel Code, thisis not a crime. However, this is creating an illogical and unwanteddifference between the married and unmarried minor girls. Such provision is contravening Section 15 (3) and 21 of the IndianConstitution. The Section 15 (3) provides special security to women and children whereas Section 21 recognizes life with dignity.
This is also a deliberate attempt to restrain the right to choose of the girls and women over their body and reproduction. On the one hand, sexual relationship with a girl below the age of 18 even with consent is a crime, but on the other, sexual relationship of husband with his minor wife is not considered a crime!
At present, the country has around 23 million child brides. Hence, itis not possible to punish all of them declaring criminals. As this is a tradition and needs to be protected without breaching it, the discourse on marital rape will create setback to marriage like institution.
However, the Supreme Court didn’t entertain the argument. The judges were of the opinion that the time has gone when married women and the minor were considered the subordinate to their husbands. Traditions are not carved on stone. This can be amended as per the time and need.
The minimum age fixed as per Section 375 of the Indian Penal Code hasbeen changing since 1860. In 1860 it was 10, in 1891 it was 12, in 1925 it changed to 13 and in 1950 it was fixed at 15. In 1929 first time an Act came to prohibit child marriage where the minimum age for marriage was fixed. As per this act, marriage of a girl below the age of 15 and a boy below the age of 18 is defined as child marriage.
Later on in 1978 the age of the girl child changed from 15 to 18 and age of boy changed from 18 to 21. In 2006 once again the Act to prohibit child marriage was amended. Despite this, no change took place in Exception 2 of the Indian Penal Code. The 84th Law Commission and the Justice Barma Committee constituted after the Nirbhya incident also recommended to withdraw this provision.
There is no difference between the ‘rape’ defined in Section 375 of Indian Penal Code and the ‘penetrative sexual offence’ as defined in Section 3 of POCSO Act. In this context having sexual relationship marrying a minor is an offence as per POCSO whereas it is not as per Indian Penal Code.
Child marriage deprives the victim of health and education, creating hurdles to lead a dignified life. Based on the marital status, this kind of violation of child rights can’t be allowed. Hence, it is essential to amend the Exception 2.
“The sexual relationship between wife and husband will not be treated as rape when the age of the wife is not less than 18,” opined the judges.
The judgment also mentioned that the implementation of Prohibition of Child Marriage Act is in slogan only. No steps are being taken despite child marriage is unbridled throughout the country. However, the Karnataka Government has created example by amending to declare the child marriage ‘void ab initio.’ This is a challenge for the rest of the States. We have progressive legislations like POCSO and Juvenile Justice Act (JJA) to protect the child rights. In this context, laws can’t be kept unchanged in the name of tradition. Hence, laws in contradiction with the rights guaranteed under Constitution need to be amended.
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