The Supreme Court asked the Ministry of Women and Child Development on Thursday to examine the contradictions in the provisions of Protection of Children from Sexual Offences (POCSO) Act and the Indian Penal Code on the question of sexual abuse of a minor girl.
The petitioner, NGO Bachpan Bachao Andolan (BBA), has contended that while any sexual offence against a child below the age of 18 years is a crime, but exemption II under Section 375 of the Indian Penal Code allows sex with a wife not being under 15 years of age.
Asking the NGO to send its petition to Women and Child Development Secretary, the bench of Chief Justice Jagdish Singh Khehar, Justice NV Ramana and Justice DY Handrachud said that the Ministry would treat the petition as a representation and examine the legality of the provision raised in it.
"The Ministry of Women & Child Development shall examine the issues canvassed in the writ petition, and take a call on the legality of the concerned provisions and communicate to the petitioner its determination, by recording reasons," the court said, giving the ministry four months’ time to carry out the exercise.
The NGO has contended that Sections 3 and 5 of POCSO Act define "aggravated penetrative sexual assault" and Section 6 provides for punishment that would not be less than 10 years and may extend to life imprisonment, while treating child up to the age of 18 years as minor.
And while under Section 375 of the IPC, a man is said to be have committed a rape on a woman if it was against her will or without consent or with a girl of unsound mind, exception II however says: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not a rape."
The BBA has contended that what was unlawful under the POCSO, how could it be lawful under IPC.
The court asked the Women & Child Development Ministry to examine the legal issues raised in the petition and respond to it by advancing reasons.
In case, the court said that if the petitioner is "dissatisfied" with the determination rendered by the Ministry, it will have the liberty to approach this court, on the same cause.