Supreme Court's under-18 ruling triggers fresh debate on teen sexuality

The Supreme Court DH File

As per Section 375 of the IPC, which defines rape, sex with a woman under the age of 18 is a criminal offence.

Meenakshi Ganguly, South Asia Director for Human Rights Watch, said the court decision would help ending the practice of early marriages. In our opinion, sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not", the court said adding: "The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. "While it is true that 18 years is accepted as the age of consent, it is also true that adolescents exploring their sexuality should not be deemed criminals", she said.

Referring to the IPC and the POCSO Act, the apex court said there was a visible conflict between the two laws with regard to the sexual assault on girl child aged between 15 to 18 years.

Marriages of girls are prevalent in India, especially among the rural poor. "The artificial distinction is discriminatory and is definitely not in the interest of the girl child". It said if a married girl was over 15 years of age, her husband could not be charged with any offense. The minor wife can now file a rape complaint within a year of the alleged crime, though the verdict will not apply to the past cases. The issue of criminalisation of marital rape is pending before the High Court of Delhi and it will be interesting to what extent the decision of the Supreme Court has a bearing on the outcome in that case.

Interestingly, although the court has categorically stated that it is not dealing with the larger issue of marital rape, Justice Madan B Lokur has held that "Constitutionally, a female has equal rights as a male and any theory that propounds a constitutional myth to the contrary must be demolished." .

Highlighting the inconsistencies in various laws, the Supreme Court on Wednesday also touched upon separate marriage laws for Hindus and Muslims and said the provisions make a "mockery" of the Prohibition of Child Marriage Act (PCMA).

"I am not oblivious to the harsh reality that most of the child brides are even below the age of 15 years". Despite improvement in literacy levels, child marriages are still common in different parts of the country. "They are innocent children, who do not even understand what marriage is", Justice Gupta wrote.

Though child marriage is prohibited, it is not automatically void under India's civil laws. She has to do this within two years of attaining majority, that is by the time she is 20 years old.

The court slammed the government for trying to "somehow legitimise" the exception clause. The government had argued that the "practice of child marriage can not be wished away and, therefore, legislature in its wisdom has thought it fit not to criminalise the consummation of such child marriages".

Providing a harmonious and purposive interpretation to all statutes relating to the rights of child, the bench has adopted an approach that best secures the interest of the girl child and further protects her fundamental right to liberty, equality, and dignity, the bench has held that Exception 2 to Section 375 of the IPC must be read down to read that "Sexual intercourse and sexual acts by a man with his own wife, the wife not being under the age of 18, is rape".

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