The anomalies in the existing laws pertaining to the criminality of rape have often led to exploitation of minor girls in India. Human traffickers often use the marriage status of minors as an alibi to push them into flesh trade. This is because of an incongruous provision in the Indian Penal Code that permits intercourse with a girl aged between 15 and 18 years on the grounds of her being married. The Supreme Court has delivered a landmark verdict, ruling that sex with one’s minor wife, below the age of 18 years, would amount to rape and that the husband can face up to 10 years’ imprisonment or even a life term under the POCSO (Protection of Children from Sexual Offences) Act of 2012. The ruling, which has removed the discrepancies in the rape law, comes as a victory for all those fighting for child rights and justice and is expected to go a long way in checking child marriages. The apex court has rightly rubbished the exceptions granted in the IPC provisions and categorically ruled that sex with a girl below 18 years of age is rape, regardless of her marital status. The minor wife can now file a rape complaint within a year of the alleged crime, though the verdict will not apply to the past cases.
The judgement is also likely to have a bearing on the criminality of marital rape, an issue that is being widely debated across the country. However, the judges refrained from making any observation with regard to the marital rape of a woman who is 18 years of age and above. Despite improvement in literacy levels, child marriages are still common in different parts of the country. According to 2011 census, around 49.50 lakh married girls were under the age of 18. The proportion of the married minors among the girls hovered around 2% across the communities, suggesting that religious faith is not a marker in the practice of child marriages. The exception to rape charges in the IPC is inconsistent with special laws, such as the Juvenile Justice Act and the POCSO Act that fixed the age of consent of the girl at 18 years. The Prohibition of Child Marriage Act (PCMA) too prescribed the marriageable age for girls as 18. The court’s ruling now effectively harmonises the definition of rape under the IPC with POCSO, which treats sex with a minor as crime, irrespective of her consent. In a society where the girl child is subjected to discrimination and exploitation in myriad ways, the exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child.