New Delhi: The Supreme Court said on Thursday said that forceful intercourse with minor wife is a criminal offence, even though section 375 of the Indian Penal Code cites that intercourse or sexual act by a man with his wife below 15 years is not rape.
The top court ruled that to protect children from sexual offences, marriage is not an exemption under the law.
The court was hearing a plea questioning the validity of a provision permitting a man to have physical relationship with his wife, even if she was aged between 15 and 18 years.
The top court also expressed dismay over the prevalence of the practice of child marriage despite the existence of the Child Marriage Prohibition Act and termed as unfortunate that this was being done mostly at the behest of girl child's parents.
"It is a hard reality and is unfortunate that most of the child marriages happening in the country are done by parents of the girl child. However, to this, there are odd exceptions when a minor boy and girl fall in love and marry on their own," a bench of Justices M B Lokur and Deepak Gupta said.
It also sought to know whether it can create an offence by striking down the exception 2 of section 375 of IPC which the Parliament has refused to do.
Advocate Gaurav Agarwal, appearing for NGO Independent Thought, said by amendment to CrPC in 2013, the age of consent for sexual intercourse by a girl, which was earlier 16 years has now been increased to 18 years.
He said that exception 2 to section 375 of the IPC still retains the age of consent as 15 years, due to which there is a huge gap of three years in the age of consent for a married girl child and an unmarried girl.
Agarwal, assisted by advocate Vikram Shrivatava, said that exception 2 to section 375 of the IPC was discriminatory and violate Article 14 of the Constitution.
Taking note of the arguments, the bench said, "We have to accept this hard reality. These kind of marriages are still happening in the country and if we are going to strike down this exception, then what would happen to the child born from such marriages. We have to keep all aspects in mind."
Agarwal said the court can strike down the exception like it did recently in the practice of triple talaq among Muslims for being arbitrary and discriminatory.
He contended that this classification has no rationale nexus with the object sought to be achieved as the reasoning behind increasing the age of consent to 18 years in 2013, was that a girl below that age is incapable of realising the consequences of her consent.
"If this is the object for increasing the age of consent to 18 years of age, then marriage of girl between the age of 15-17 years does not make the girl mature enough (mentally or physically) for the purpose of consent. Thus, it is discriminatory," Agarwal said.
He cited the fourth National Family Health Survey of 2015-16, and said there were 26.8 per cent of brides in the country who were married below the age of 18 years of age.
In the third Survey of 2005-06, the figure was even larger and 46 per cent of women (23 million brides) were married before the age of 18 in the country, he added.
The Centre, in its affidavits, had admitted that child marriage were still happening in the country due to uneven economic and educational development.
"It has been therefore decided to retain the age of 15 years under exception 2 of section 375 of IPC, so as to give protection to husband and wife against criminalising the sexual activity between them," it had said.
It had said that lawmakers had taken a pragmatic view regarding the issue of 'marital rape' as marriage being a social institution was the bedrock of any society and hence, needs to be protected.
"Exception 2 of section 375 of IPC envisages that if the marriage is solemnized at the age of 15 years due to traditions, it should not be a reason to book the husband in the case of offence under the IPC," it had said.
The Centre also gave details of number of prosecutions that have been instituted over the last three years.
The apex court had on August 9 said the raging issue whether to make forced marital intercourse and sexual acts, part of offence of rape in penal law, has been extensively debated and it cannot be considered as a criminal act.
Earlier, the apex court had in 2015, made National Commission for Women (NCW) party to explain how the offence of rape in the Indian Penal Code (IPC) afforded an exception to a man to have physical relationship with his minor wife and still not qualify it as crime. The NGO in its petition sought direction to declare exception 2 to Section 375 of the IPC as "violative of Articles 14, 15 and 21 of the Constitution to the extent that it permits intrusive sexual intercourse with a girl child aged between 15 and 18 years, only on the ground that she has been married."
It has also referred to the provisions of the Protection of Children from Sexual Offences Act (POCSO), 2012, and said these provisions were contrary to the IPC provision.
The POCSO provision provides that physical relationship with a minor constitutes the offence of rape and it does not exclude such relationship between a man and his minor wife.
(With inputs from agencies)