A little more than a month ago, on 17th Oct 2017, in the Child Marriage and Marital Rape [Independent Thought vs Union of India] case the Supreme Court ruled that sexual intercourse or sexual acts between a man and his minor wife was marital rape. In legal terms the Supreme Court had read down Exception 2 to Section 375 of the Indian Penal Code. This exception had deemed that a man could not be accused of marital rape if he had marital intercourse with his minor wife as long as the wife was not below the age of 15. Reading down the exception now meant that this exception would not apply to cases where the wife was between 15yrs and 18yrs.
Disha Chaudhry wrote about the reasoning behind this judgement in the Oxford Human Rights Hub.
The Bench comprising of Justice Madan B Lokur and Justice Deepak Gupta delivered the verdict in a petition challenging Exception 2 to Section 375 to the extent of its applicability to cases of married girls between the ages of 15-18 years, as it considerably lowers the age of consent which has been laid down as 18 under Section 375. This piece highlights the broad themes underlying the reasoning adopted by the Supreme Court in reading down the Exception.
The Exception is an arbitrary distinction leading to legal conflict in pro-child laws.
A perusal of the Constituent Assembly Debates would show that Article 15(3) of the Constitution, which empowers the State to make special provisions for women and children, was incorporated to integrate a socio-economically disadvantaged group into society by means of discriminatory legislative action in their favour. Parliament has enacted a set of laws for protecting the rights of the child, for example, the Prohibition of Child Marriage Act, 2006, (PCMA), the Protection of Children from Sexual Offences Act, 2012 (“POCSO”), and the Juvenile Justice Act, 2015. Under Section 3 of POCSO, sexual acts committed against a girl child by a man who is in a marital relationship with her amount to aggravated penetrative sexual assault, which is defined similarly to rape under Section 375 of the IPC, and is punishable with imprisonment of not less than 10 years. The result is a glaring inconsistency between the two provisions, the same act by a man against his minor wife being an offence under POCSO but not under the IPC. Noting the inconsistency, the Court held that Exception 2 legitimizes an act otherwise considered a heinous crime and creates an artificial and discriminatory distinction between minor girls between the ages of 15-18 solely on the basis of their marital status. Further, the failure of Parliament to address the anomaly in law leads to a manifestly arbitrary provision that has no rational basis.