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.