Top Indian court rules sex with wife younger than 18 is rape

Supreme Court

The functionary said that the government is happy with the verdict and is unlikely to challenge it. Her willingness or consent was of no concern. Instead of attempting to effectively implement and enforce the anti-child marriage law, the government diluted it by creating artificial distinctions The government had urged the court not to tinker with the exception clause as it was introduced keeping in view the age-old traditions and evolving social norms.

"In developing countries, the leading cause of death for young girls between the age of 15 and 18 is early pregnancy", the Bill read, adding that the UN Convention on the Rights of the Child suggests the minimum age for marriage should be 18. "Exception in rape law is discriminatory, capricious and arbitrary..." That penal code provision was in violation of laws establishing the legal age of marriage at 18 for women.

Sex with any minor - including within a marriage, as is the case of child brides, is illegal in India.

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Referring to the IPC and the POCSO Act, the apex court said there was a visible conflict between the two laws with regard to the sexual assault on girl child aged between 15 to 18 years.

Interestingly, although the court has categorically stated that it is not dealing with the larger issue of marital rape, Justice Madan B Lokur has held that "Constitutionally, a female has equal rights as a male and any theory that propounds a constitutional myth to the contrary must be demolished." . The government had argued that the "practice of child marriage can not be wished away and, therefore, legislature in its wisdom has thought it fit not to criminalise the consummation of such child marriages".

While pointing out the consensual sex between youths, Karat said, "If the girl is 16 and the boy around the same age, to treat such a relationship as statutory rape, and for the boy to be deemed a criminal and rapist is wrong". But, the decision hasn't taken an individual's right to sexuality, into consideration.

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"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".

"The minor wife can complain against the husband within one year", the Supreme Court said, according to NDTV.

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