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Victory for child rights
Criminalisation of sex with child wife protects girls and deals a blow to child marriage
By far the biggest takeaway from the Supreme Court reading down the exception in Section 375 of the Indian Penal Code (which defines the offence of rape) that says intercourse or a sexual act by a man with his wife not below 15 years is not rape, is that a child regardless of her gender is legally still a child till attaining the age of 18. The blow that can potentially be dealt to the vile practice of cutting short a girl's childhood by making her victim of conjugal depredation if a progressive judgment is backed by robust administrative action and a societal ambience that has zero tolerance for such venality, ought to make even those who may have genuine concerns about the implementation and practicality of the criminalisation of sex within marriage when the girl is below 18 years of age take the plunge and support the judgement in both word and action. Till the exception to Section 375 IPC was on the statute it was a major impediment to social reform; it's reading down would act as a deterrent to parents who push girl children into marriages for a complex set of socio-economic reasons. It may be true and empirically evident, as the Union Ministry of Home Affairs (MHA) submitted to the two-judge Bench which passed the order, that “marriage of minors is an age-old custom in India practiced by all social groups”, and yes, the implementation of the order will require a degree of administrative nous and a level of competence by those manning the levers of the criminal justice system which has hitherto not been evident. But that is the challenge for the makers of a New India and the government seems to have accepted it with the MHA stating it would abide fully by the directions of the apex court.
In terms of jurisprudence, too, the Supreme Court order provides clarity — one of the points made in the judgement is that the exception was inconsistent in law with other statutes covering children specifically such as the Prevention of Child Marriage Act, Juvenile Justice Act and the Protection of Children from Sexual Offences Act. Answering the question of whether the court by reading down the exception would create a new offence which may not have been the intent of the law-making organ of state, the legislature, the Bench rightly held in this case that it was only removing from the statute “what was unconstitutional and offensive” as the husband of a girl child can be charged under other sections of the IPC for assault, causing grievous hurt etc but cannot be charged with rape, leading to a “anomalous and astounding situation where the husband can be charged with lesser offences but not the more serious offence of rape”. In a line, the court has with unerring logic pointed out that if a crime has been committed and it meets all the requirements for the offence of rape to be made out, there can be no lesser charge preferred because of the social reality argument (on which presumably the exception to Section 375 IPC was based), especially when would also contravene extant laws for the protection of children and the legal definition of who is a child. There's no arguing with that. The Supreme Court's caveat that it is not commenting on the issue of marital rape in this order must also be noted by all.
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