India's supreme court outlaws sex with wife under 18

Supreme Court

The Supreme Court ruled Wednesday that sexual intercourse with a girl younger than 18 is rape.

The exception clause (2) under Section 375 IPC (which deals with rape) was challenged by NGO Independent Thought through a petition.

Indian law says a woman must be at least 18 to marry and consent to sex, but there are exceptions.

Marriage to girls under 18 and boys under 21 is banned in India, but the practice of child marriage is widely prevalent in backward and rural areas amid weak enforcement of laws, poverty and patriarchal social norms.

Justices Madan B Lokur and Deepak Gupta read down this exception and argued that it was inconsistent with other statutes dealing with children like The Prohibition of Prevention of Child Marriage Act (PCMA), The Protection of Children from Sexual Offences (POCSO) Act and Juvenile Justice Act, which have fixed the minimum age of the girl child for sexual relations at 18.

It is freaky how the court has raised an objection to only criminalise rape with a wife who is a minor but on the other hand, gave men a free pass to rape their wives just because they were married off at the legal age. "But how come, a Minor Girl be Legally Married?" asked Aarti.

The rationale for increasing the age of consent to 18 years in 2013 [from the earlier age of 16 years- which was the age of consent since 1940] is that a girl below the age of 18 years is considered incapable of realizing the consequences of her consent; she is treated as a minor under law and, therefore, mentally and physically not mature enough to give a valid consent.

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"How will one ensure that the man is not having intercourse with his wife?"

The Supreme Court disagreed. The Delhi High Court in the last hearing on 25 Sep had said that instances of women behaviour are not unknown and added that a feeble no may mean a yes. But same would not be the situation if the parties are known to each other are intellectually/academically proficient and if in the past there have been physical contact. Why should a women's no be in any case taken as a yes and especially if it follows rape? "For the longest time human traffickers have been using marriage with minors as an alibi to rape young girls in the first instance before selling them to pimps and brothel owners".

"Marital rape of a girl child is effectively nothing but aggravated penetrative sexual assault and there is no reason why it should not be punishable under the provisions of the IPC".

But the reality in India didn't match the laws. "India has enacted a law against child sex abuse, but should do much more to enforce the protections", she said.

The top court also expressed concern over the health of the girl child saying a child bride is more than doubly prone to health problems than a grown-up woman.

Marital rape is not a crime in India, and Prime Minister Narendra Modi's right-wing government believes criminalizing marital rape could destabilize marriages and make men vulnerable to harassment by their wives.

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