India's high court rules having sex with child brides is rape

Supreme Court

In a landmark case that will affect millions of child brides, it ruled yesterday that sex with a minor amounts to rape, even if the couple are married. "The minor wife can complain against the husband within one year", said the court, adding that lowering the legal age for sex to 15 for a married girl is "unconstitutional".

India's Supreme Court disagrees.

India's age of consent is 18 and child marriage is illegal, but the practice persists in many parts of the country.

Marital rape is not recognized as a crime in India, but sex with a child under 18 is considered rape.

It ruled that police should in future prosecute cases of marital rape if the victim was under 18 and registered a complaint within a year of the incident.

The top court gave its verdict on a petition by an NGO, Independent Thought, challenging the validity of an exception clause (2) in Section 375 of the IPC that states that intercourse or sexual act by a man with his wife, not below 15 years, is not rape. The discrepancy in protection from rape results in an obvious legal vacuum where girls between the ages of 15 to 18, who are married, are unprotected by criminal law from forced and intrusive sexual intercourse. "The institution of marriage must be protected".

"I would urge the courts to take cognisance of the predicament of adult women who live in fear of rape or sexual violence at the hands of their spouse and in the security of her home".

Exception 2 to Section 375 of the Indian Penal Code exempts marital rape of girls between the age of 15 and 18 from the purview of rape.

It also referred to the provisions of the Protection of Children from Sexual Offences Act (POCSO), 2012, which were contrary to the IPC provision. "All the (above) said acts regard a girl less than 18 years as a child".

The petitioner had further submitted that pregnancy at a young age can cause adverse health effects on the girl and the child and is violative of Article 15 of the Constitution.

The exception that the court was dealing with has been the centre of controversy for years, since it fails to criminalise marital rape or recognise the importance of consent within a marriage.

The court has now acknowledged that the sexual intercourse with a minor was a violation of the fundamental right to life and equality of minors.

"The judgment will boost the "Beti Bachao, Beti Padhao" campaign and girls will be saved from abuse after this verdict". "Human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance", said Justices Madan Lokur and Deepak Gupta.

The results can be devastating, with girls dropping out of school to cook and clean for their husbands and suffering health problems from giving birth at a young age.

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