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Published: Sat, October 14, 2017
Global Media | By Abel Hampton

Indian Court Bans Underage Sex in Child Marriages

Indian Court Bans Underage Sex in Child Marriages

The earlier age of 15 years has now been modified to 18 years for claiming exemption under the amended rape provisions.

It was also clarified that the Supreme Court had not gone into the issue of marital rape since it was not the subject matter of the case before the court.

Justice Gupta, who wrote a separate but concurrent verdict, said the age of marriage was 18 in all laws and the exception given in the rape law under the IPC is "capricious, arbitrary and violates the rights of a girl child".

The central government recently told the supreme court that criminalizing marital rape could destabilize the institution of marriage and become an easy tool for harassing husbands.

In a landmark ruling on October 11, the country's highest court declared that having sex with a wife who is under the age of 18 counts as rape, and is therefore a criminal act.

They had also referred to the provisions of the POCSO Act and said these were contrary to the IPC provision. Under POSCO, a physical relationship with a minor constitutes the offence of rape and this does not exclude such relationship between a man and his minor wife.

This judgment has been declared to be prospective in nature, which means that any prosecution for marital rape of girl child can only be initiated for such rape occurring after the date of the judgment, and no such act alleged to have occurred prior to the judgment can be treated as an offence.

Section 377, which criminalises homosexual intercourse, is one, another being "Exception 2" to Section 375 which criminalises rape.

According to the 2011 government census, the percentage of under-18 marriages in India was as high as 47 per cent.

He also suggested that the petitioner should ask for relief under "sexual abuse" defined in the PWDVA.

Still, she said, "I think this ruling will get more girls to step forward and assert their rights". Moreover, the contention was also that the discrepancy classifies women into two categories based exclusively on their marital status but such categorisation did not have any reasonable nexus to the object in mind.

Girls under 18 who are raped by their husbands will be able to bring charges against them up to a year after the crime. According to government data, 46% of women in India between the ages of 18 and 29 years were married before the age of 18 years. "The petitioner submits that this classification has no rational nexus with the object sought to be achieved". Such cases are also flooding the juvenile justice system where a boy below 18 years is invariably charged under the POCSO Act for eloping with his girlfriend and can be potentially be tried as an adult if he is above 16 years and is alleged to have committed penetrative or aggravated penetrative sexual assault.

India's age of consent is 18 and child marriage is illegal, but the practice persists in many parts of the country.

The judges on Wednesday restricted their decision to marriages involving a minor only, declining to comment on whether the entire marital rape exception should be scrapped.

But the court stopped short of revoking an exception in the country's criminal law that permits rape in marriage, now the subject of separate legal proceedings.

Swagata Raha & Shraddha Chaudhary are Legal Researchers at the Centre for Child and the Law, National Law School of India University, Bangalore.

"The judgment will boost the "Beti Bachao, Beti Padhao" campaign and girls will be saved from abuse after this verdict".

The apex court had also observed that child marriage can not go on like this just because this illegal practice was assumed to be legal and has been going on for ages.

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