Supreme Court rules sexual intercourse with minor wife would be considered rape

Frederick Owens
October 13, 2017

A husband can have sexual intercourse with his wife, if she is above the age of 15 years irrespective of her consent.

If the honourable court and our elected representatives are of the view that recognising marital rape would lead to destabilisation of marriage, how is it different for an underage?

It also referred to the National Plan of Action for Children, 2016, saying that the government of India itself has recognised the high rate of child marriages prevalent in the country which violates the basic rights of health, development and protection of the child.

Striking down the provision of criminal law that permitted sex with wife aged between 15 and 18, the apex court said that age of consent for sex can not be reduced from 18 years and that the husband is liable to be prosecuted if the woman files a complaint within a year of the sexual act. Are all men married to girls between the ages of 15 and 18 to be condemned to face criminal cases as rapists?

As per the data, 13 percent under-18 girls in Delhi were married which has come down from 22.7 percent recorded in 2005-06.

A two-judge Bench unanimously made a decision 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".

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"Shockingly, even if this sexual intercourse is forcible and without the consent of the girl child, then also the husband is not liable for any offense", he said, pointing out several rights that a girl child loses including right to study and develop "physically, mentally and economically into a mature woman".

The Supreme Court disagreed. In such case, it would be really hard to differentiate whether the no was a no or just a feeble n.o which could be assumed as a yes, the argument went on. The arguments given, clearly discriminated between a no of an uneducated woman and a no of educated women.

This principle lays down that "the husband can not be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she can not retract". The NGO demanded the apex court raise the bar of below 15 to 18. "However we refrain from commenting on adult marital rape as the issue is not before us", Live Law reported. Can she be deprived of her right to say "yes" or "no" to having sex with her husband, even if she has consented for the marriage?

But the reality in India didn't match the laws. The clause was also against the Protection of Children from Sexual Offences Act which considers sex with children - those below 18 - as rape.

Marital rape is not a crime in India, and Prime Minister Narendra Modi's right-wing government believes criminalizing marital rape could destabilize marriages and make men vulnerable to harassment by their wives. The artificial distinction was arbitrary and discriminatory and was definitely not in the best interests of the girl child.

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