The court had agreed with NGO Independent Thought, which filed the petition challenging the exception, on how when sexual intercourse with a minor aged below 18 with or without her consent amounts to rape under IPC, it is not so once she is married.
According to the IPC, Section 2 of Article 375, "A man is said to commit rape if he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her do so with him or any other person against her will or without her consent".
"The counter affidavit of Union of India refers to the National Family Health Survey (of 2005) in which it is stated that 46 percent of women in India between the ages of 18 and 29 years were married before the age of 18 years".
Child marriage is illegal in India, but remains widespread throughout the country, especially in rural areas.
Noting the glaring anomaly, the Bench of Justices Madan B Lokur and Deepak Gupta said, "A married girl between 15 and 18 years of age could be a victim of aggravated penetrative sexual assault under POCSO Act but she cannot be a victim of rape under the IPC if the rapist is her husband, since the IPC does not recognise such penetrative sexual assault by a husband as rape". The court declared yesterday that if a husband has sex with his underage wife, that qualifies as rape. "But how come, a Minor Girl be Legally Married?" asked Aarti.
Indian law says a woman must be at least 18 to marry and consent to sex, but there are exceptions and a man was permitted to have sex, even forcibly, with a girl as young as 15, as long as she was his wife. "Civil society can do just so much for preventing such child marriages but eventually it is for the Government of India and the State governments to take proactive steps to prevent child marriages so that young girls in our country can aspire to a better and healthier life." the court said in a report.
"How will one ensure that the man is not having intercourse with his wife?" One analysis of the 2011 census states that 10 million girls were married before they turned 18 and almost 800,000 before they reached 10.
The Supreme Court disagreed. The arguments given, clearly discriminated between a no of an uneducated woman and a no of educated women. Stopping Child Marriages is the first step towards avoiding minor marital rape. This law was introduced by Sir Matthew Hale in 1736, and it also gave the right to the husband to whip his wife if she denied for sex.
But the reality in India didn't match the laws.
The Protection of Children from Sexual Offences Act (POCSO) considers sex with children (those below 18 years of age) as rape. It is high time that the government takes that message on board. It has persuaded Parliament to convert what is otherwise universally accepted as a heinous crime into a legitimate activity for the goal of Section 375 of the IPC if the exploiter or abuser is the husband of the girl child. In other words, what was statutory rape is treated as permissible within a marriage.