The Supreme Court decided to examine the issue of not penalising a man for forcibly having sex with minor wife, the Centre defended in the Supreme Court a provision in the Indian Penal Code (IPC) that does not penalise a man for forcibly having sex with his wife aged between 15 and 17, saying the exception in rape law was meant to protect the institution of marriage.
Centre made its submission before a bench headed by Justice MB Lokur, which is hearing a petition filed by NGO Independent Thought urging the court to intervene and read down section 375 (2) of IPC – an exception under the rape law – that permits a man to have sex with a girl aged between 15 to 17 if she is married to him.
Citing various other laws related to children, the NGO said there should be uniformity in defining a child. While the law on marriage recognises an 18-year-old girl as a major and it’s illegal for a girl below that age to marry, the IPC provision, on the other hand, supports child marriages, the petitioner said.
Centre resisted the NGO’s proposal to raise the age of consent. Binu Tamta told the court institution of marriage must be protected. She quoted from the law on marriage and said wedlock between minors was not void but voidable and child marriages were a reality in India.
“The institution of marriage must be protected. Otherwise, the children from such marriages will suffer,” Tamta said, claiming socio-economic realities of life in India cannot be ignored. The government has claimed there are 23 million child brides in India and reading down the IPC provision would make the husbands susceptible to criminal prosecution.
The court then asked the lawyer to give data on how many child marriage prohibition officers are there and how many cases have been registered under the Child Marriage Prohibition Act, 2006.
Referring to the 23 million child brides, Justice Deepak Gupta – second bench member – said: “This reflects badly on the government.”
We see a girl under 18 years of age as a child in POCSO Act, but once she is married, she is no more a child under the exception 2 to Section 375 of the IPC. This is totally inconsistent. The truth is that a girl under 15 is still a child, married or not. The Parliament has to protect the child,” NGO’s counsel Gaurav Agrawal said. He said that there are 23 million child brides in the country and there had hardly been over six convictions under the anti-child marriage law. The NGO submitted that this statutory exception to rape was violative of the right to life and personal liberty of girl child and was contrary to POCSO. The court said the matter needed to be examined and asked the petitioner to file a report regarding adverse health impacts on girls who are married at the age of 15 to 18 years. It also pulled up the Centre for not taking steps to curb the practice of child marriages.
