Top Indian court rules sex with wife under 18 is rape

Supreme Court

Supreme Court of IndiaReuters

"Surely, the Union of India can not be oblivious to the existence of the trauma faced by a girl child who is married between 15 and 18 years of age or to the three pro-child statutes and other human rights obligations".

According to the IPC, Section 2 of Article 375, "A man is said to commit rape if he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her do so with him or any other person against her will or without her consent".

JULIE MCCARTHY, BYLINE: Despite a law prohibiting child marriage, India has more child brides than anywhere in the world.

Marriage to girls under 18 and boys under 21 is banned in India, but the practice of child marriage is widely prevalent in backward and rural areas amid weak enforcement of laws, poverty and patriarchal social norms.

Striking down the provision of criminal law that permitted sex with wife aged between 15 and 18, the apex court said that age of consent for sex can not be reduced from 18 years and that the husband is liable to be prosecuted if the woman files a complaint within a year of the sexual act.

He asked if a child marriage, which is admittedly "an evil" and also a criminal offense, can be "set up as an exception in a case of a girl child, who is subjected to sexual intercourse by her so called husband". But the same legal protection was not accorded to a girl below 18 if she was married.

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The previous legal regime meant a 17-year-old boy who had consensual sex with another girl his age could be charged with statutory rape, while a 50-year-old who raped his 15-year-old wife was committing no crime. The other inconsistency is with the prohibition of the child marriage act, on one hand, the law says that child marriage is illegal, while on the other hand, the same law provides a child marriage exception to rape, the advocate argued.

BBC reporter Geeta Pandey said a married girl is unlikely to have the courage to speak out against her husband, particularly if she has been married with parental consent. But now the question that arises is, does the Supreme Court judgement imply the consent of the married minor as an obligatory for sex with the husband If so can an adult married woman be denied the same right. The NGO demanded the apex court raise the bar of below 15 to 18.

"We do not want to go into the aspect of marital rape". "For the longest time human traffickers have been using marriage with minors as an alibi to rape young girls in the first instance before selling them to pimps and brothel owners". Does a man having forced sex with his better half without her consent not destroy the institution of marriage already?

The court has definitely taken a historic decision, it even blamed the government saying that "What has the government of India done?" The clause was also against the Protection of Children from Sexual Offences Act which considers sex with children - those below 18 - as rape.

Rape in marriage was recognised in British law in 1991 and across the United States by 1993.

When children, especially girls, get married young, it hinders their overall growth and development.

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