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Sex with wife below 18 is rape

Sex with wife below 18 is rape

The country's top court did not rule on marital rape involving a wife above the age of consent.

The exception clause (2) under Section 375 IPC (which deals with rape) was challenged by NGO Independent Thought through a petition.

"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".

Importantly, he pointed out the dichotomy between the impugned Exception under IPC and other statutes like Protection of Children from Sexual Offences Act, 2012 (POCSO), Prohibition of Child Marriage Act, 2006, Juvenile Justice (Care and Protection of Children) Act, 2000. A man can face a minimum of seven years in jail for having sex with a minor wife. But the same legal protection was not accorded to a girl below 18 if she was married.

This judgment ends the disparity in Indian law which had an exception clause in Section 375 (applied in rape cases) which allows a man to have sex with his wife as long as she's 15 or older.

Rejecting the government's contention, a bench of Justices Madan B Lokur and Deepak Gupta said the Centre's view that evolution of the concept of "marital rape" of a girl child could destroy the institution of marriage could not be accepted. 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.

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Despite the argument given by the government, the Supre Court on 11 Oct criminalised sex between a man and his underage wife.

The Supreme Court disagreed.

Rape is recognised as an offence against the very nature of consent as well as against the society under the Indian Penal Code. The Delhi High Court in the last hearing on 25 Sep had said that instances of women behaviour are not unknown and added that a feeble no may mean a yes. Why should a women's no be in any case taken as a yes and especially if it follows rape? When a girl is minor then how come she is a wife at first place? "If a girl is not mentally and physically fit to give consent till she reaches 18 years, her marriage at age of 15 years or 16 years or 17 years does not change the situation".

The judges on Wednesday restricted their decision to marriages involving a minor only, declining to comment on whether the entire marital rape exception should be scrapped.

But the reality in India didn't match the laws.

Haribhai Parthibhai Chaudhary, the Minister of State for Home Affairs stated in April 2015, "The concept of marital rape, as understood internationally, can not be suitably applied in the Indian context due to various factors, including levels of education, illiteracy, poverty myriad social customs and values, religious beliefs, [and] the mindset of the society to treat the marriage as sacrament". The artificial distinction was arbitrary and discriminatory and was definitely not in the best interests of the girl child.