Sex with wife below 18 is rape, rules Indian Supreme Court

Supreme Court on Wednesday said the exception in the rape law was unconstitutional

The court called the exception, "arbitrary, discriminatory and capricious".

However, there were some anomalies within the existing law that were allowing for violence against the child brides.

It bears mentioning that the judges made it clear they were not getting into the subject of marital rape, a petition for which was already pending.

The court rejected the Union government's plea that since a large number of child marriages took place in the country, it would not be proper to criminalize the consummation of such matrimonial alliances.

Justice Gupta wrote a separate but concurrent verdict.

While expressing concern over the practice of child marriages in the country, the bench said social justice laws were not being implemented with the spirit with which they had been enacted by parliament. "Otherwise, the children from such marriages will suffer", the court said while announcing its verdict.

Dr. Vanita Raut, Gynaecologist said, "The girl is not mentally ready and there is a possibility of her getting infected with sexually transmitted diseases if sex is forced on her".

But its criminal code had included an exception for married couples, in a country where around 46% of women aged between 18 and 29 were married before reaching legal adulthood.

By virtue of this exception, the husband of a married girl child between 15 and 18 years of age, can have non-consensual sexual intercourse with her, without being penalized under the IPC.

The court said the exception in the rape law was contrary to the philosophy of other statutes and violates the bodily integrity of a girl child. "Therefore, this is a major inconsistency between POCSO and IPC", Justice Gupta said. 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?

"Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape", according to the clause. Firstly, how can the definition of "rape" change with a possession of a marriage certificate and the age of the woman?

"Surely, the Union of India can not be oblivious to the existence of the trauma faced by a girl child who is married between 15 and 18 years of age or to the three pro-child statutes and other human rights obligations". "From now on, a girl who is exploited can go to the police, can go to the justice system and say, I am being abused", she said.

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