The Supreme Court’s decision to criminalise sex between a man and his underage wife if the woman files a complaint within a year is a landmark order. Not only does it fix the age of consent at 18 for all girls, it could also have a significant bearing on the rising number of cases under the Prohibition of Child Marriage Act, 2006. Coincidentally, this progressive step by the Supreme Court comes on a day when the world marks the Day of the Girl Child.
Here are some of the major areas where the SC ruling will have significant impact:
Rape – Section 375 of IPC
The Supreme Court while criminalising sex with a minor wife between 15 and 18 years of age said that the rape law had an exception that was arbitrary and violative of the law.
Section 375 of the IPC, which defines the offence of rape, has an exception clause that says intercourse or sexual act by a man with his wife, not below 15 years, is not rape. The top court has struck it down.
Age of Consent
The second area where this law impacts is the age of consent. Laws on rape and child marriage in India differ on age of consent. This has now been settled with the order. While Section 375 says sex with a girl who is below 18 is rape but sex between a man and his underage wife, 15 or above, even without her consent, is not.
This was a discrepancy between the age of consent, which is 18, and the exception in case of married underage girls above 15 years, which has now been fixed by the apex court.
Also Read: Sex with wife below 18 years of age to be considered rape, rules Supreme Court
Child Marriage
The SC order on Wednesday should help arrest the rising number of cases under the Prohibition of Child Marriage Act, 2006. The number of complaints filed under this Act has seen a steady increase. As per date furnished by the National Crime Records Bureau, the number of cases filed has risen from 60 cases in 2010 to 293 cases in 2015.
Criminalisation of sex with a minor wife could curtail this social evil. The apex observed that child marriage cannot go on just because this practice was assumed to be legal and has been going on for ages.
Marital Rape
Crucially, the verdict comes at a time when the top court is hearing a bunch of petitions seeking to declare marital rape as a crime. While the SC bench clarified that it had not gone into the larger issue of marital rape in its verdict, the verdict could possibly have a bearing on the case as well since both concern the right of a woman over her body.
The Centre said in the affidavit that marital rape has not been defined in a statute or law, while the offence of rape is defined under Section 375 of the IPC. Hence, defining marital rape would call for a broad-based consensus of the society.
Implementation of Laws
The apex court had earlier reserved its verdict while questioning the Centre how Parliament could create an exception in law declaring that intercourse or a sexual act by a man with his wife, aged between 15 and less than 18 years, is not rape when the age of consent is 18. The government had defended the rape law exception saying India had 23 million child brides and criminalising the “consummation of the marriages” as rape would not be appropriate. The court, however, rejected this contention and asked the central and state governments to take proactive steps to prevent child marriages.
Expressing concern over the prevalent practice of child marriage in the country, the SC bench said social justice laws were not implemented with the spirit with which they have been enacted by Parliament.
