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The court was hearing a petition by Delhi-based child rights NGO Independent Thought.
Section 375 of the Indian Penal Code, which defines the offence of rape, has an exception clause that says intercourse or sexual act by a man with his wife, not below 15 years, is not rape. A bench of Justices Madan B Lokur and Deepak Gupta read down this exception arguing that it was inconsistent with other statutes dealing with children such as The Prohibition of Prevention of Child Marriage Act (PCMA), Juvenile Justice Act and The Protection of Children from Sexual Offences (POCSO) Act — all these have fixed the minimum age of the girl child for sexual relations at eighteen.
Flavia Agnes, women's rights lawyer and founder of the NGO Majlis, called the verdict a "big milestone", but questioned its practicality.
"It has to be implemented only if the wife files a complaint," she said.
“In my view, as far as this case is concerned, this Court is not creating any new offence but only removing what was unconstitutional and offensive.” Justice Gupta said: “if the husband beats a girl child and has forcible sexual intercourse with her, he may be charged for offences under Sections 323, 324, 325 IPC etc. This leads to an anomalous and astounding situation where the husband can be charged with lesser offences but not with the more serious offence of rape.” On child marriages, he said that “in the National Family Health Survey-4, 2015-2016…it was found that at the time of carrying out the survey in 2014, amongst women in the age group of 20-24 years, almost 26.8% women were married before they attained the age of 18 years, i.e.
more than one out of 4 marriages was of a girl child.” He also referred to a report based on the 2011 Census and said that it “reveals a shocking aspect that girls below the age of 18 years are subjected to three times more marital rape as compared to the grown-up women.” Justice Gupta also pointed to the need for amending PCMA.
Women's rights activists in the country hailed the ruling as a "positive step in the right direction" and a possible "deterrent for child marriages".
agmati Sangwan, women's activist and member of the All India Democratic Women's Association (AIDWA), told Al Jazeera.However, the law had an exception clause that said a man was not guilty of rape if he had consensual sex with a wife who was above the age of 15.After hearing a petition by NGO Independent Thought, the Supreme Court ruled on Wednesday that the age of consent was 18.The Act, said Justice Gupta “has been breached with impunity”. In the case of a minor girl child, good health would mean her right to develop as a healthy woman.He added, “I think the time has come when this Act needs serious reconsideration, especially in view of the harsh reality that a lot of child trafficking is taking place under the garb of marriage including child marriage.” Stating that child marriages not only violated human rights, the judge said that it also affects the health of the child. This not only requires good physical health but also good mental health.On PCMA, which says that a child marriage is not void, but only voidable at the option of any of the parties, the order said “in other words a child marriage is sought to be somehow ‘legitimized’ by the Union of India and the onus for having it declared voidable or a nullity is placed on the child bride or the groom”.