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Sex with balika vadhu is rape

| | New Delhi
Sex with balika vadhu is rape

Sexual intercourse with a wife below 18 years of age will, henceforth, be considered as rape, the Supreme Court ruled in a landmark decision on Wednesday. In effect, the judgment has done away with the protection husbands enjoyed under Indian Penal Code (IPC) Section 375 Exception 2 that allows a husband to have sexual intercourse with a minor wife, provided she is not below

15 years of age. The decision came on a Public Interest Litigation filed by NGO Independent Thought.

A two-judge Bench unanimously decided to “read down” the above provision by inserting 18 years in place of 15 years, to make the Exception to IPC Section 375 read as, “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape.”

By doing so, the SC harmonised the law under IPC with the provisions of the Protection of Children from Sexual Offences (POCSO) Act 2012 under which “penetrative sexual assault” with a girl below 18 years by a person (even if related to the child through marriage) is a punishable offence under Section 5(n), the punishment for which extends from ten years’ prison term to even life imprisonment.

Noting the glaring anomaly, the Bench of Justices Madan B Lokur and Deepak Gupta said, “A married girl between 15 and 18 years of age could be a victim of aggravated penetrative sexual assault under POCSO Act but she cannot be a victim of rape under the IPC if the rapist is her husband, since the IPC does not recognise such penetrative sexual assault by a husband as rape.

Such a girl child has no recourse to law under the provisions of the IPC…However such a victim could prosecute the rapist under the POCSO Act. We see no rationale for such an artificial distinction.”

The order also comes as a boost to curb child marriages, as the protection for husbands under the Exception clause of IPC Section 375 was seen by the court to “encourage” child marriages. Strangely, the Centre opposed the PIL and submitted that child marriage, though a crime, is a social reality in the country, home to 23 million child brides, with a high prevalence among Scheduled Castes (34.9 per cent), followed by Scheduled Tribes (31 per cent) and lower wealth index (44.1 per cent). It even took the plea that with marriage, the girl child consents for sexual intercourse as well.

The Bench said, “There is no question of a girl child giving express or implied consent for sexual intercourse…those days are long gone when a married woman or girl could be treated as subordinate to her husband or at his beck and call or as his property. Constitutionally, a female has equal rights as male…Traditions that might have been acceptable at some historical point of time are not cast in stone. If times and situations change, so must views, traditions and conventions.”

The court was assisted with research by two lawyers Gaurav Agarwal and Jayna Kothari who displayed ample material on the detrimental effects of child marriage on the girl child’s reproductive, physical, and mental health. It even impacts children born of such marriages.

Justice Lokur in his separate judgment said, “India realizes the dangers of early marriages, it is merely dishing out platitudes and has not taken any concrete steps to protect the girl child from marital rape, except enacting the POCSO Act.”

Leaving it to the Centre and States to proactively curb child marriages, he added, “Welfare schemes and catchy slogans are excellent for awareness campaigns but they must be backed by focused implementation programmes, other positive and remedial action so that the girl child can look forward to a better future.” 

 
 
 
 
 

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