Apex Court of India Expresses Concern Over Child Marriages Being Supported by Girls’ Parents

New Delhi, Aug 31: The Apex Court of the country articulated concern over the commonness of the tradition of child matrimony in spite of the presence of the Child Marriage Prohibition Act and called as regrettable the fact that this was being done generally at the will of girl child's parents.

The court was hearing a petition with regard to the legitimacy of a stipulation allowing a man to enter into physical connection with his wife, even if she was between 15 and 18 years of age.

Throughout the plea, the Supreme Court asserted that declaring as null and void such stipulation in section 375 of the Indian Penal Code (IPC) would be equal to committing a wrongdoing.

Section 375 of the IPC, which outlines the wrongdoing of rape, has an exclusive clause that observes intercourse or sexual act by a man with his wife, not beneath 15 years, cannot be termed as rape.

"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 noted.

It as well wanted to discern whether it would be considered a wrongdoing removing the exception 2 of section 375 of IPC which the Parliament has rejected to do.

Advocate Gaurav Agarwal, representing NGO Independent Thought, observed that by modification to CrPC in 2013, the age of approval for sexual intercourse by a girl, which was previously 16 years has now been augmented to 18 years.

He stated that exception 2 to section 375 of the IPC still keeps the age of approval as 15 years, because of which there is a big difference of three years in the age of approval for a wedded girl child and a single girl.

Agarwal, aided by advocate Vikram Shrivatava, stated that exception 2 to section 375 of the IPC was biased and breach Article 14 of the Constitution.

Taking into account the point of view put forward, the bench stated, "We have to accept this hard reality. These kinds 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 stated the court remove the exception resembling what it did in recent times with regard to the custom triple talaq amongst Muslims for being random as well as biased.

He asserted that this categorization has no cogent link with the aim wanted to be attained as the logic behind augmenting the age of approval to 18 years in 2013, was that a girl beneath that age is incompetent of understanding the results of her approval.

"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 stated.

He quoted the fourth National Family Health Survey of 2015-16, and observed there were 26.8 per cent of brides in the nation who were wedded beneath the age of 18 years.

In the third Survey of 2005-06, the number was even bigger and 46 per cent of women (23 million brides) were wedded prior to the age of 18 in the nation, he further stated.

The Centre, in its affirmation, had acknowledged that child wedding was still transpiring in the nation because of unequal financial as well as educational extension.

"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 criminalizing the sexual activity between them," it had stated.

It had observed that legislators had taken a practical outlook concerning the topic of 'marital rape' as wedding being a societal tradition was the basis of any culture and therefore, requires to be safeguarded.

"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 stated.

The Centre as well provided details of number of trials that have been started over the previous three years.

The Supreme Court had on August 9 revealed that the strong topic whether to make enforced nuptial intercourse and sexual actions, component of wrongdoing of rape in penal regulation, has been broadly discussed and it cannot be deemed as an unlawful action.

Previously, the Supreme Court had in 2015, made National Commission for Women (NCW) partaker to clarify how the wrongdoing of rape in the Indian Penal Code (IPC) provided an immunity to a man to have physical ties with his minor wife and still not think it be an act of crime.

The NGO in its appeal wanted guidance to affirm 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 as well cited the necessities of the Protection of Children from Sexual Offences Act (POCSO), 2012, and stated these requirements were converse to the IPC stipulation.

The POCSO rider entails that physical tie with a minor is equivalent to the wrongdoing of rape and it does not keep out such links between a man and his minor wife.