SC says sex with child bride is rape, remember the Centre put marriage above child rights

In a landmark ruling, the Supreme Court upheld the age of consent as 18 years, which, many are optimistic will pave the way for criminalizing marital rape altogether.

The SC read down exception 2 under section 375 of the IPC, which defines rape. This section includes minor wives (those between 15 and 18 years of age) under the exception given to marital rape. This essentially means that forced sex with a minor by her husband, if she is not under 15 years of age, is not rape.

However, it is also important to note that it wasn’t anyone else but the Indian government which argued for upholding the marital rape exception.  Arguing against a petition by an NGO, Independent Thought, the Centre sought to uphold the exception to ‘preserve the institution of marriage’. Independent Thought had argued that the exception was inconsistent with the increased age of consent at 18.

Protecting the institution of marriage

An affidavit filed by the Centre, accessed by Live Law, shows that the primary argument of the Centre rested on the fact that while child marriage was illegal in India, it was still a social reality. Therefore, The exception should be retained to protect the private affairs of the husband and wife in these marriages.

Binu Tamta, the Centre’s lawyer, had said, “The institution of marriage must be protected. Otherwise, the children from such marriages will suffer.”

Furthermore, the affidavit says that “It is true that the minimum age for marriage of a female is 18 years and the punishment has been provided in the Prohibition of Child Marriage Act, 2006 to discourage child marriages. However, it is also a fact that a large section of the Indian society, which is living in rural areas, continues to follow such practices as part of their tradition.”

Quoting the National Family Health Survey 3, the Centre said that 46% women between 18 and 29 years of age were married before they turned 18. There are 23 million child brides in the country, the survey also said.

“Hence criminalizing the consummation of a marriage union with a serious offence such as rape would not be appropriate and practical,” the affidavit states. “Providing punishment for child marriage with consent does not appear to be appropriate in view of socio-economic conditions of the country,” it adds.

It must be noted however that since the age of consent for women is 18, the fact that a child marriage has happened with ‘consent’ is contradictory.

However, Swagata Raha, a legal researcher with Center for Child and the Law, NLSUI, Bengaluru had pointed out to TNM earlier that it is important to consider that India doesn’t have a legal framework which recognises consensual sexual relationships between children below 18 years of age.

The Centre also made a case for implying child marriage was part of ‘tradition’, and said, “Exception 2 of section 375 envisages that if the marriage is solemnized at the age of 15 years due to traditions, it should not be a reason to book the husband in the case of offence of rape under the IPC.”

There are other laws aggrieved child brides an appeal under

Rana Mukherjee, senior counsel for the Centre defended the retention of exception 2 under section 375, saying that aggrieved child brides between 15 and 18 years of age could always use the Protection of Children from Sexual Offences Act, 2012 (POCSO) and the Protection of Women from Domestic Violence Act, 2005.

According to a Live Law report, Mukherjee said that the definition of ‘sexual abuse’ under the latter act would take care of the petitioner’s concerns. Sexual abuse under this Act is defined as any sexual conduct which “abuses, humiliates, degrades or otherwise violates the dignity of woman”.