Context:
- The Supreme Court has criminalised sex between man and his underage wife below 18 years provided the woman files a complaint within a year.
- The landmark order fixes the age of consent at 18 for all girls.
- The apex court gave its order on a petition filed by NGO Independent Thought which had challenged exception clause (2) in Section 375 IPC (which deals with rape).
What is the issue?
- Exception 2 to Section 375 (rape) of the Indian Penal Code (IPC): allowed the husband of a girl child — between 15 and 18 years of age — blanket liberty and freedom to have non-consensual sexual intercourse with her. Her willingness or consent was of no concern. The husband in such cases was not punished for rape.
- According to NGO Independent Thought’s petition, this exception clause was against objectives of Prohibition of Child Marriage Act (which sets 18 years as statutory marriageable age for girls) and also violation of international conventions to which India was a signatory.
- Under the Indian Penal Code, it is an offence to have sex with a girl below 18 years of age, regardless of consent.
- In other words, what was statutory rape is treated as permissible within a marriage.
SC Verdict:
- The Supreme Court held that age of marriage was 18 in all laws and exception given in rape law under clause (2) of Section 375 of IPC was arbitrary and was violates the rights of a girl child.
- It violates Article 14, 15 and 21 of the Constitution.
- Moreover it was contrary to the philosophy of other statutes and violates the bodily integrity of a girl child.
- It asked the Centre and states to take proactive steps to prohibit child marriage across country.
- The apex court also clarified that it has not dealt with the issue of marital rape as it was not raised before it.
Analysis:
- It is not clear yet whether all men married to girls between the ages of 15 and 18 to be condemned to face criminal cases as rapists.
- Given the prevalence of child marriage in this country, it is doubtful whether it is possible or even desirable to implement the statutory rape law uniformly in the context of marriages.
- It is not clear what it means for those married under Muslim personal law, which permits girls below 18 to be married.
- POCSO criminalises even consensual teenage sexual activity and the latest ruling has brought this into the domain of marriage.
- A teenager could be prosecuted for a sexual offence under POCSO even if he was just a little above 18.
- Significantly, if boys under 18 but over 16 are charged with penetrative sexual assault under POCSO or rape under the IPC, which can be termed ‘heinous offences’, they could face the prospect of being tried as adults, according to the juvenile law as it stands now.
- Treating all below 18 as children may be good for their care and protection, but whether 18 is the right age for consent in this day and age remains a moot question.
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