Section 375 of Indian Penal Code defines when an offense is considered to be “rape” ! It has an exception clause which states that act of sexual intercourse by a man with his wife is not rape not below 15 years of age.
Justices Madan R Lokur and Deepak Gupta considering this exception of Section 375 argued that other laws that deal with children such as THE PROHIBITION AND PREVENTION OF CHILD MARRIAGE (PCMA), Juvenile Justice Act and The Protection of Children Act from Sexual Offences (POCSO) have minimum age limit of 18 years for girl child regarding sexual relations. The exception clause of Section 375 of Indian Penal Code is not consistent with the other laws for the girl child.
The court added to its decision telling that sexual act before the age of 18 is considered to be “rape” regardless of the fact whether the girl child is married or not. The legal marriage age for girls in India is 18 but many places in the country, particularly in rural regions, get their girl child married before the legal age. According to exception clause of Section 375, an act of sexual intercourse below the age of 18 years now will be classed as “rape”. Supreme Court on 11th Oct 2017 ruled that police should prosecute such cases if the victim is below 18 years of age and the complaint is registered with the year of the incident.
Though child marriage violates the human rights the cases of girl child getting married under the legal age are still prevalent. Justice Gupta on child marriage stated that “in the National Family Health Survey-4, 2015-2016…it was found that at the time of carrying out the survey in 2014, amongst women in the age group of 20-24 years, almost 26.8% women were married before they attained the age of 18 years, i.e. more than one out of 4 marriages was a girl child.” (G, 2017)
Child marriages not only violate the human rights but this still existing system in the society takes a toll on the health of the girl child as well. Talking about the health of girl child the judge states that
“Good health is the raison d’etre of a good life. Without good health, there cannot be a good life. In the case of a minor girl child, good health would mean her right to develop as a healthy woman. This not only requires good physical health but also good mental health. The girl child must be encouraged to bloom into a healthy woman. The girl child must not be deprived of her right of choice. The girl child must not be deprived of her right to study further…In the modern age, when we talk of gender equality, the girl child must be given equal opportunity to develop like a male child. In fact, in my view, because of the patriarchal nature of our society, some extra benefit must be showered upon the girl child to ensure that she is not deprived of her right to life, which would include her right to grow and develop physically, mentally and economically as an independent self-sufficient female adult”, the order added. (G, 2017)
Lawyers of marital rape see a ray of hope in the decision of Supreme Court for the girl child victims. We can hope this to be starting ladder for reducing cases of marital rapes and human trafficking.