Pune: In a landmark judgment, the Supreme Court (SC) on Wednesday held that a man indulging in sexual intercourse with a minor wife between the age of 15 to 18 years will be considered as rape.
This sheds light on social justice laws, like the Prohibition of Child Marriage Act, 2006, which are not implemented with the spirit and purpose for which they were enacted.
“First of all, when there are laws against child marriage and child abuse, then why was there an exception on minor marital rape? Marital rape with a minor has been violating all these said laws, so technically, it should have been included earlier. However, now that the court has come out with a judgment, it will benefit a lot of minor girls, giving a window to voice their sufferings. Moreover, it will slowly deter child marriages and marital rape cases,” said city-based advocate Rama Sarode.
“In Maharashtra, the ratio of child marriages in the Muslim community is higher. When a girl submits to child marriage, it will be very difficult for her to even revolt against marital rape. No one reveals that they have got a minor girl married at home. These cases have been suppressed forever. It will depend on how this judgment will be implemented, only then will it be effective,” said Shamsuddin Tamboli, President of Muslim Satyshodhak Mandal.
“Muslim girls are considered to be eligible once they reach puberty, according to Muslim Marriage Act. It has been observed that 90 per cent of girls are family oriented, obliged to abide by their family’s decision. There are slim chances that these girls will speak out against injustice suffered by them,” added Tamboli.
“The Parliament will now have to bring amendments in laws which do not consider marital rape at all. They will also have to bring changes in Protection of Children Against Sexual Offences (POCSO Act) 2012, and Prohibition of Child Marriage Act, 2006. There is skew of conflicts added to all these laws that protects children abuse which needs to be unfolded and this decision comes as a light in the dark,” said child rights activist, Advocate Anjali Pawar.
“Also, it has to be noted that the couple including a minor girl who willingly elopes and gets married will be scrutinised under both acts now. Therefore, such couples and advocate defending their case will now have to be more careful with their case,” added Pawar.
Under Section 375 of the Indian Penal Code (IPC) prescribes the age of consent for sexual intercourse as 18 years meaning thereby that any person having sexual intercourse with a girl child below 18 years of age would be statutorily guilty of rape even if the sexual activity was with her consent.
However, by virtue of exception 2 to Section 375 of the IPC, if a girl child between 15 and 18 years of age is married, her husband can have non-consensual sexual intercourse with her, without being penalised under the IPC. With the present judgment this section gets nullified.