There was a recent article in Hindustan times titled "Government defends no action for legal exception allowing forced sex with minor wife" which was a report on the recent case in Supreme Court, Independent Thought(NGO) vs. Union of India. Getting Inspiration reading that story I had quite a few questions going in my mind and after a little bit of research I got to know something about various laws in respect of protection of Minor in case of Rape when she is also married and lack of uniformity amongst the laws for considering a person as a minor ultimately providing no criminal liability against the person who married the girl child just for sex & providing no remedies to the girl child as that person is protected by the law itself.
Solet's go through the basic definitions first as per those laws that are relevant to Marital rape in child marriage and then head on the Conclusion Remarks.
Q1. Who is a Minor/Child in context of Child Marriage& Rape?
Ans. A Minor or a Child is defined to be
• A person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age as per The Prohibition of Child Marriage Act of 2006.
• As per Section 375 of Indian Penal Code, a rape is if a man applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances such as with or without her consent, when she is under eighteen years of age.
Thus as per the IPC, a minor is a girl under 18 years of age as per the definition till now
Q2. What constitutes a Rape?
Ans. As per the Section 375 of Indian Penal Code, a man is said to commit "rape" if he--
a. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
b. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
c. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any ~ of body of such woman or makes her to do so with him or any other person; or
d. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:
First- Against her will.
Secondly- Without her consent.
Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly- With or without her consent, when she is under eighteen years of age.
Seventhly- When she is unable to communicate consent
Q3 What is child marriage?
Ans. The definition of child marriage was last updated by India with its The Prohibition of Child Marriage Act of 2006, which applies only
• to Hindus, Christians, Jains, Buddhists and those who are non-Muslims of India, and
• outside the state of Jammu and Kashmir.
The Prohibition of Child Marriage Act of 2006 defines "child marriage" means a marriage, or a marriage about to be solemnized, to which either of the contracting parties is a child; and child for purposes of marriage is defined based on gender of the person - if a male, it is 21 years of age, and if a female, 18 years of age
Q4. So if the law itself says if the Girl is less than 18 years of age and she has been subjected to forced sex with or without her consent then as per law it is a rape, Right?
Ans. Sadly, no as per the Exception in the IPC itself, if a person commits forced sex with his wife who is in the age of 15 to 17 then that act cannot be considered as Marital Rape.
Q5. What is the Government’s contention in this case?
• In this case Independent Thought(NGO) vs. Union of India, Central government defended in the Supreme Court this exception provision in the Indian Penal Code that grants immunity to a person from the rape charge provided the victim is his wife and aged between 15 and 17 years, saying the exception in the law was meant to protect the institution of marriage.
• Tamta, the advocate appearing for the Centre, told the court that some laws had been enacted taking into account the "socio-economic realities of life in India" and there was no need for court interference.
Q6. How much population are we talking about here in India?
Figure 1 Census Report of 2011, released in 2015
• Frankly speaking, about 1/3rd of the Total marriages in India are when the girl’s age is less than 18. The latest Census report released in March-April, 2015 reports that on the decadal headcount in 2011 reveals that child marriage is rampant, with almost one in every three married woman having been wed while she was still under the age of 18 years. As this report belongs to what would have been the case in 2011 thus the percentage can go either way but in a silver lining of sorts the trend seems to be on the decline as per the earlier Census 2001 data, 43.5% of all married women had been married while they were under the age of 18 years.
• The Census data also show that 91% of all married women were married by the age of 25 years.
Q7. What did the Court say about this issue?
Ans. The Supreme Court granted the Centre two weeks to place before it data relating to
• the number of child marriages
• the number of prohibition officers appointed by states in keeping with the Prohibition of Child Marriages Act, 2006
• and medical records on the impact of such marriages on children
Q8. What are the thoughts of the Public Prosecutor upon it?
• The NGO pointed out that under the Prohibition of Child Marriages Act, the legal age for marriage in India is 18 years for girls and 21 years for boys while in IPC incentive is given if the marriage happens in the age of 15 to 17. It contended that there was no reason for the exception to continue as such immunity nurtured child marriages.
• Advocate Gaurav Agrawal, appearing for the NGO, said that since most of the girls involved in child marriages were between 12 and 17 years of age, the brides were left without any remedy as they cannot file rape cases against their husbands because of the immunity.
Q9. What are your thoughts about this?
• Although the Prohibition of Child Marriages Act prohibits marriage between minors, such marriages become illegal only if an aggrieved party moves court seeking annulment within two years of attaining majority.
• Alternatively, the child as a minor can file a petition in court through a guardian for annulling the marriage. But since in most cases the parents or guardians are the ones who give away the child in marriage, this legal mode is not common, Agrawal told the court.
• We should wait on court's order in next week and see what happens, However one must also note that a new and progressive legislation Protection of Children from Sexual Offences Act, 2012 disallows any such sexual relationships and puts such crimes with marriages as an aggravated offense
One should understand that while one of the qualifying conditions to constitute a rape as per IPC is that the victim girl should be less than 18 years of age and on a prima facie view one might be also of the view that
• There shall be no dispute on whether the minor has given consent or not as the section believes that sexual intercourse which leads to penetration even if given with consent shall constitute a rape as a minor might not be the best judge for herself at this age in this relation so ultimately we feel that the law is in favour of the girl child.
• However, after going through the exception all such perceptions get shattered as what it says is that if a person gets married to a girl child in whatsoever conditions and rapes her then lawfully it shall not constitute a rape.
• Thus it brings down the legal age of minor from 18 to 15 if you have married that girl so in a way the IPC provisions are supporting child marriages.