{"id":709,"date":"2018-01-14T11:15:13","date_gmt":"2018-01-14T11:15:13","guid":{"rendered":"http:\/\/www.wakilsahab.in\/news\/?p=709"},"modified":"2018-01-14T11:15:13","modified_gmt":"2018-01-14T11:15:13","slug":"marital-rape-issue-may-turn-on-supreme-court-s-decision-on-consent-in-child-marriages","status":"publish","type":"post","link":"https:\/\/www.wakilsahab.in\/news\/marital-rape-issue-may-turn-on-supreme-court-s-decision-on-consent-in-child-marriages\/","title":{"rendered":"Marital Rape Issue May Turn on Supreme Court\u2019s Decision on Consent in Child Marriages"},"content":{"rendered":"

Source –\u00a0thewire.in<\/strong><\/p>\n

New Delhi:<\/strong>\u00a0The Supreme Court is currently hearing challenges to the validity of a clause in the Indian legal definition of rape which excludes sexual intercourse by a man with a minor girl above the age of 15 if she happens to be\u00a0his\u00a0wife.<\/p>\n

Most observers believe the court is unlikely to strike this exception\u00a0down. The reason is not because the court disagrees with the petitioners\u2019 argument that the exception violates constitutional provisions guaranteeing equality, which indeed, it does. It creates\u00a0an unreasonable category \u2013\u00a0 married minor girls \u2013 and denies them state protection from rape by\u00a0their husbands merely on the ground of their marriage. So what explains the judicial resistance to striking\u00a0down this clause?<\/p>\n

Under the sixth definition\u00a0of rape in\u00a0Section 375 of the Indian Penal Code, a man is said to commit the crime\u00a0if he indulges in\u00a0specified sexual acts with a girl\u00a0under 18 \u2013\u00a0with or without her consent.\u00a0However, Exception 2 says\u00a0sexual intercourse or sexual acts by a man with an underage girl\u00a0will not be considered rape so long as the girl is his wife and is not under 15\u00a0years of age.<\/p>\n

The petitioner before the Supreme Court, Independent Thought, an NGO, and the intervener, Child Rights Trust, have rightly asked how\u00a0marriage of a girl aged between\u00a015 and 18 can\u00a0justify denying her a legal\u00a0protection which is extended to girls of the same age group who are not married.<\/p>\n

In other words, the very law which says\u00a0that any\u00a0girl aged between\u00a015 and\u00a018 is incapable of giving her consent for sexual intercourse somehow assumes that a girl of the same age group, if married, is capable of doing so. How is this possible, the petitioners ask.<\/p>\n

While the Supreme Court bench of Justices Madan B. Lokur and Deepak Gupta, agrees with the petitioners on this, it has found the issue too complicated to be resolved easily. The bench asked counsel to clarify the consequences of declaring Exception 2 unconstitutional, implying that some of the fears may be unfounded. The bench itself pointed out that\u00a0children born out of wedlock with minor girls would not\u00a0become illegitimate merely because the exception\u00a0goes.<\/p>\n

Under Section 3 of the\u00a0Prohibition of Child Marriage Act (PCMA), 2006, any person who was a child at the time of marriage can move to have it voided. A\u00a0petition under this section must be filed by the girl child before she reaches\u00a0the age of 20. Under the\u00a0PCMA, a \u201cchild\u201d means \u201ca person who, if a male, has not completed 21\u00a0years of age, and if a female, has not completed 18\u00a0years of age.\u201d<\/p>\n

Since\u00a0there is ample evidence to suggest that\u00a0most child marriages do not get annulled under the Act, the Supreme Court is hesitant to strike down Exception 2 for fear that such a\u00a0ruling may\u00a0prove to be unimplementable.<\/p>\n

Karnataka is the only state which amended the PCMA to declare a marriage solemnised between children as void\u00a0ab initio<\/em>or invalid in law. This amendment was introduced in April but early\u00a0results show it\u00a0has not yielded the desired results yet.<\/p>\n

It is in this context that Justice Lokur came up with a novel\u00a0proposal to the counsel during the hearings \u2013 to distinguish marriage from sexual intercourse. \u201cBoth are very different\u201d, he told them. A minor girl child who has married may not want to take the trouble of filing an application for voiding it through her parents or guardian, or wait till she turns 18; but she could certainly say that she does not want to have sexual intercourse with her husband till she is 18, he emphasised. Does the state not have a duty to protect her from sexual intercourse, if not from marriage, he asked.<\/p>\n

On September 5, Jayna Kothari,\u00a0counsel for the NGO, Child Rights Trust, noted\u00a0that according to 2016 UNICEF report India has the highest number of child brides \u2013 with 47% of girls being married before they attain the age of 18. Further, India ranks second highest in terms of the rates of child marriages in South Asia, with 75% of the girls married before the age of 18 belonging to the poorer section of society and a total of 48% of the women married before the age of 18 belonging to the rural areas.<\/p>\n

According to the National Family Health Survey 2015-16, 26.8% of women in the age group of 20-24 were married before the age of 18. The survey has found that forced sexual encounters at the hands of older husbands have long-lasting adverse impacts on the psychological and emotional well-being of the girl and often result in post-traumatic stress disorder with young girls being at a greater risk of suffering marital rape. Furthermore, sexual relations \u2013 and the resultant teenage pregnancy \u2013 compromise the reproductive health of the girl child, exposing her\u00a0to a higher risk of contracting sexually transmitted diseases and complications owing to lack of biological maturity leading to increased maternal mortality rates of girls between the ages of 15-19, Kothari told the bench.<\/p>\n

In her submission, she\u00a0stated that in Karnataka, during 2016-17, 58 child marriages were conducted, but only 22 complaints were filed with the police, under the PCMA. According to her, there is no explanation for why the child marriage prohibition officers, appointed under the Act, did not file complaints and take steps for prosecution in the remaining cases. She also noted\u00a0that once married, minor girls are under extreme social and family pressure and cannot file complaints.<\/p>\n

The Centre, which has begun its submissions in the case, will continue on Wednesday (September 6).<\/p>\n

The Modi government is defending\u00a0the child marriage exception to rape on the ground that it is traditional, even if abhorrent, and that parliament was conscious of the inconsistency between the the IPC and PCMA when it chose to retain the exception, while increasing the age of consent from 16 to 18 for girls in 2013.<\/p>\n

Meanwhile, the Delhi high court, which has been hearing a bunch of petitions\u00a0challenging marital rape in general, suspended its proceedings on Monday in view of the doubts expressed that the outcome of the Supreme Court\u2019s hearing in the child marriage exception case might have a bearing on the case before\u00a0it. The high court, after ascertaining the details of the petitions being heard by the Supreme Court, will decide whether to continue its hearing in the case, on Friday.<\/p>\n

But as the hearing resumes on Wednesday in the Supreme Court, the link between a possible ruling in the child marriage exception case, and the ongoing\u00a0quest to criminalise\u00a0marital rape in general is too obvious to be missed. If the Supreme Court considers the consent of the minor married girl to be a prerequisite for her husband to have sexual intercourse with her, it will become difficult to deny married women above 18 years of age the same right to sexual autonomy and bodily integrity.<\/p>\n

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