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Supreme Court of India: Sex with Minor in Marriage as Rape

October 11, 2017

On Wednesday, the Indian Supreme Court, through a Bench comprising of Justices Madan B. Lokur and Justice Deepak Gupta, delivered a judgement holding the exception to rape of a minor girl, not aged below 15, by her husband as illegal, by reading down Exception 2 to Section 375 of IPC.

 

The now redundant provision reads as follows:

 

“Section 375 - A man is said to commit "rape" if he:–– (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:

Firstly.–– Against her will.

Secondly. –– Without her consent.

Thirdly. –– With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly. –– With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.–– With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly. –– With or without her consent, when she is under eighteen years of age.

Seventhly. –– When she is unable to communicate consent.

 

Explanation 1.–– For the purposes of this section, "vagina" shall also include labia majora.

Explanation 2.–– Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act;

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exceptions –– 1. A medical procedure or intervention shall not constitute rape; 2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

 

Because of this provision, there was a disparity between Child Marriage Laws and POCSO. The age of consent for all purposes has been held by the Parliament to be of 18 years. With this, this exception was not only violative of fundamental rights of minors, not below the age of 18, but also treated married and unmarried minors differently, only by virtue of their marital status. Thus, rape of an unmarried minor girl was a criminal offense, but if the minor was married to the perpetrator, and was not below the age of 15, it would come under the exception to rape, under marital rape.

 

The Bench steered clear from any discussion on marital rape, and cautiously said that it was the job of the Parliament to bring about any legislative changes to this exception. However, this judgement is but a small victorious step into that direction.

 

Although child marriage has been illegal for 70 years, it is still practiced in many communities. This judgement has a grave policy impact on shaking the foundations on which child marriage continues being based.

 

It must be noted that the Bench did not go into details about preserving the institution of marriage, but made an exception only where minors are concerned.

 

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