The SC’s observations came in a case where an NGO has challenged the exception for sex in marriages where the wife is between 15 and 18 years of age.
The provision that sex in a marriage where the wife is not less than 15 is not rape has been defended by successive governments on the plea that this reflects a social reality.
Child marriage a reality, says government
The NGO Independent Thought has argued that the husband should be prosecuted under the Protection of Children from Sexual Offences (POCSO) Act. A bench of Justices Madan B Lokur and Deepak Gupta, examining the validity of the provision that “sexual acts by a man with his own wife, not being under 15 years of age, is not rape”, said cases of a minor wife could well be dealt with under the POCSO law and proceedings could be initiated against the husband.
While the number of marriages where the wife is between 15 and 18 years — the latter being the legal age for matrimony for girls — is reducing, it still constitutes a significant number.
The national family health survey of 2015-16 shows that the percentage of women in the 20-24 age group who married before they turned 18 has declined in states like Bihar, Goa, Haryana, Karnataka, Madhya Pradesh, Tamil Nadu, Uttarakhand and West Bengal from 2005-06. Apart from the issue of minor brides, the demand that marital rape be made an offence is also being heard in the Delhi high court.
The court was hearing a PIL filed by Independent Thought seeking direction for fixing the age of consent of a wife at 18 years for having sex with her husband instead of 15 as of now.
It challenged the constitutional validity of the amendment to Section 375 (rape) of the IPC, which makes an exception on age of consent of the wife for sex.
Advocate Gaurav Agrawal, appearing for the petitioner, told the bench that POCSO was a special act meant to protect the rights of kids and it would override the provision of the Indian Penal Code that provided an exception in case of child marriages.
Referring to Section 42A of POCSO, he said that the exception under the IPC would not apply in those cases.
Section 42A says: “The provisions of this act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this act shall have overriding effect on the provisions of any such law to the extent of its inconsistency.”
The Centre, in its submission, justified the exception saying that marriage was sacrosanct and a social institution and it had to be protected, particularly when child marriage was a reality in the country.
Despite prohibitory laws, child marriages are still prevalent and there are around 2.3 crore minor brides in the country. The Centre told the apex court that 899 cases of child marriage were registered in the last three years and 136 people convicted in those cases.
Source : timesofindia