The Supreme Court in a landmark judgement on October 11 held that sexual intercourse with 'minor wife' - between 15 and 18 years of age, would be considered rape despite consent.
The Court read down Exception 2 to Section 375 (rape) of the Indian Penal Code (IPC) which allowed the husband of a child between the age of 15 and 18 to have non-consensual sexual intercourse with her. And the husband could not be charged with rape.
Prior to this, as mentioned above, the act of sexual intercourse with a minor wife between the age of 15 and 18, even if non-consensual would not be considered an act of rape, and hence this judgement by the Apex court is being considered historic.
The Court in its landmark judgment observed, "The issue before us is limited but one of considerable public importance - whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape? Exception 2 to Section 375 of the Indian Penal Code, 1860 (the IPC) answers this in the negative, but in our opinion, sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. 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. The artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child. The artificial distinction is contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in international conventions. It is also contrary to the philosophy behind some statutes, the bodily integrity of the girl child and her reproductive choice. What is equally dreadful, the artificial distinction turns a blind eye to trafficking of the girl child and surely each one of us must discourage trafficking which is such a horrible social evil."
Politicians, women's rights activists hailed the court's judgment. However, the Top Court made it clear that the judgement has no reference to the ongoing debate on marital rape.
On the issue of marital rape, the court said, "We make it clear that we have refrained from making any observation with regard to the marital rape of a woman who is 18 years of age and above since that issue is not before us at all. Therefore we should not be understood to advert to that issue even collaterally."
The judgment through welcome by all, triggered a question - Is isn't 18 the marriageable age for girls in India? How can the Supreme Court even consider anybody below 18 as a wife?
Here's what you need to know: According to the Court's judgment, it mentioned that "The counter affidavit of the Union of India refers to the National Family Health Survey - 3 (of 2005) in which it is stated that 46% of women in India between the ages of 18 and 29 years were married before the age of 18 years. It is also estimated, interestingly but disturbingly, that there are about 23 million child brides in the country. As far as any remedy available to a child bride is concerned, the counter affidavit draws attention to Section 3 of the Prohibition of Child Marriage Act, 2006 (the PCMA)."
So, in spite of the marriageable age being 18 for girls in India, there are 23 million child brides in the country.
Here is what the law says:
Under Section 3(1) of the PCMA a child marriage is voidable at the option of any contracting party who was a child at the time of the marriage. The marriage can be declared a nullity in terms of the proviso to Section 3(1) of the PCMA through an appropriate petition filed by the child within two years of attaining majority and by approaching an appropriate court of law. It is also stated that in terms of Section 13(2)(iv) of the Hindu Marriage Act, 1955 a child bride can petition for a divorce on the ground that her marriage (whether consummated or not) was solemnized before she attained the age of 15 years and she has repudiated the marriage after attaining that age but before attaining 18 years of age. In other words, a child marriage is sought to be somehow 'legitimized' by the Union of India and the onus for having it declared voidable or a nullity is placed on the child bride or the child groom.
Let's break it down in simple words and understand how it works. What it means that if a girl is married below the age of 18, the marriage is voidable, but not void. The difference being, in case of voidable, the marriage remains valid until challenged in the court of law. However, if challenged, the marriage will be considered null and void.
A child marriage can be annulled only if challenged in court under Prohibition of Child Marriage Act.