New Delhi: The Supreme Court on Wednesday reserved verdict on petitions to declare the exception provided in Section 375 IPC, excluding intercourse with a minor girl involved in child marriage as an offence, as unconstitutional.
A bench of Justices Madan B. Lokur and Naveen Gupta reserved the verdict at the conclusion of arguments from the senior counsel for the Centre, Rana Mukherjee, and counsel for the petitioners seeking court intervention to remove the anomaly. The Centre cautioned the court from treading into the issue of “marital rape” as that was not the issue before the court.
The petitions related to conflict between the IPC, which terms children as those aged under 15 years, and Protection of Children from Sexual Offences (Pocso) Act, which terms children as those aged under 18. But as far as the IPC is concerned, under an exception to Section 375, a man is not guilty if he has sexual intercourse with his “wife” if she is more than 15 years old. This, when child marriage continues to be illegal under the Prohibition of Child.
It was submitted that there was an anomaly, viz, those who are not married and for them, the age of sexual consent is 18. Then there are those who are married and a husband can have sexual intercourse with his wife if she is above the age of 15, irrespective of her consent.
“Millions of child marriages continue to take place in this country and children are born through such wedlock. But if this section is declared invalid, then what would be the consequences of such marriages? What would the children be addressed as? We need to address such social realities and problems,” the bench observed.
The Centre had defended Section 375(2), saying the immunity provision was meant to protect the institution of marriage.
“The institution of marriage must be protected. Otherwise, the children from such marriages will suffer,” it said.
Some laws like the “exception provided for marital rape had been made taking into account the socio-economic realities of life in India” and there was no need for court interference in the matter. Parliament would take a call when need arises.
