The Supreme Court's October 11 ruling which stated that intercourse between a man and his wife under 18 years of age will be considered as rape has sparked a fresh debate on the rights of women, female sexuality and consensual sex between adolescents, the social realities.
He said the policy goal is to ensure equal access to basic education and promote retention, competition and high performance for all pupils which require attention and provisions for particularly the disadvantaged children especially girls at the basic education level. Similarly, a child remains a child whether she is a married child or an unmarried child or a divorced child or a separated or widowed child.
Furthermore, rape under Section 375 of the IPC is defined in a similar manner as that of aggravated sexual assault under the POCSO Act, with the same punishment being prescribed for the two offences under the respective statutes and a man does not enjoy immunity under the latter which is a special law enacted towards fulfilling the obligation on part of the State to make special provisions for women and children in order to secure the best interests of the child.
The apex court read down a provision in the Indian Penal Code of 1860 exempting males from being tried for rape if the wives were between the age of 15 and 18 years.
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Gender rights activists welcomed the judgment saying it may reduce instances of child marriages, but said the decision has come as a blow to individual's right to sexuality. Under the Dissolution of Muslim Marriages Act, 1939, if a minor girl under the age of 15 years is married under Muslim law, she can obtain a decree of dissolution of marriage before she attains the age of 18 years provided that the marriage has not been consummated.
The court, however, refrained from dealing with the issue of marital rape of a woman above 18 years of age.
Sex with or without the consent of a girl under 18 years old is a crime. "They are innocent children, who do not even understand what marriage is", Justice Gupta wrote. In our opinion, sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not", the court said adding: "The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved.
"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".