Successive governments have blinked at the incongruity of Section 375 (2) of the Indian Penal Code which absolved a husband of rape charges even if he had sex with his wife who was below the age of 18. The court had on Wednesday held that sex with a minor wife would amount to rape.
Referring to the Protection of Children from Sexual Offences (POCSO) Act, the Bench comprising Justices Madan B Lokur and Deepak Gupta said POCSO Act provides that if a person related to a child below 18 years of age commits a penetrative sexual assault on that child, then he would be liable for aggravated penetrative sexual assault.
"Therefore, if the husband of a girl child commits penetrative sexual assault on his wife, he actually commits aggravated penetrative sexual assault as defined under Section 5(n) of POCSO Act and is punishable by a term of rigorous imprisonment of not less than 10 years and which may extend to imprisonment of life."
"The duality therefore is that having sexual intercourse with a girl child between 15 and 18 years of age, the husband of the girl child is said to have not committed rape as defined in Section 375 of the IPC but is said to have committed aggravated penetrative sexual assault in terms of Section 5(n) of the POCSO Act."
"The only difference is that the definition of rape is somewhat more elaborate and has two exceptions but the sum and substance of the two definitions is more or less the same and the punishment for being found guilty of committing the offence of rape is also same under IPC and POCSO Act. POCSO Act was legislatively intended to override all other laws."
Articles 1 and 34 of Convention on the Rights of the Child obliges Indian government to undertake all measures to prevent sexual exploitation or sexual abuse of any person below the age of 18 years since such sexual exploitation or sexual abuse is a heinous crime.
"What has the government of India done? It has persuaded Parliament to convert what is otherwise universally accepted as a heinous crime into a legitimate activity for the purpose of Section 375 of the IPC if the exploiter or abuser is the husband of the girl child."