The Hon’ble Supreme Court came up with an exception for marital rape of girls between the age of 15 to 18 and sexual assault in marriage is considered as a Rape as mentioned in Protection of Child from Sexual Offences Act, 2012.
In my opinion “a Girl/child remain a girl/child whether she is married girl, divorced girl or an unmarried girl or a separate or widow girl”. In the various enactments such as “Prohibition of Child Marriage Act of 2006, Protection of children from Sexual Offences Act and Juvenile Justice Act, all which define a “child” as someone who is below 18 years of age”. The consent shall not be presumed by the husband if the woman is of underage i.e. below 18 and no one is allowed to give consent on her behalf neither his parents, only the women of above 18 can give consent.
Pointing out the injustice Lokur J. stated that certain exception is always in existence which create anomaly because section 375 of Indian Penal Code itself stated that sex with a girl below the age of 18, with or without her consent, was a rape in the eyes of law, an unmarried girl can prosecute her rapist but a married girl child aged between 15 and 18 could not even do that.
With this judgement of Hon’ble Supreme court trigger up the paradox tradition of child marriage is void-ab-intio and ended up the inconsistency between Exception 2 of IPC. i.e.
“If Husband have non-consensual sexual intercourse with his wife, and wife or girl child is of between 15 to 18 years of age, then husband is not penalised under the IPC, only because she is married to him and for no other reason”
Although in the present scenario the judicial system provides set of right to the young women but the reality is bit different since the compulsory heterosexuality is not considered as social evil, how then women would be safe in today’s society?
Please Refer:- Supreme Court Ruling
This post has been contributed by Saransh Vijay, a penultimate techno legal student at School of Law, UPES University.
Image from here