Why SCI Order Making Sex with Minor Wife Rape Is Historic and What It Means
The SCI has struck down on Wednesday Oct 11,2017 and held invalid the exception clause to rape provision in the Indian Penal Code. It stated that sexual intercourse with a minor wife in the age group of 15 to 18 would be a crime and amount to rape.
What's Section 375 (2)?
Section 375 of Indian Penal Code deals with rape and after the latest amendment following the Nirbhaya case, the provision states that a man is considered to have committed rape if he performs vaginal, anal or oral intercourse with a woman or forces her to do the same with another person without her consent. This clause also includes another six cases under which a case of rape can be established. But there are two exceptions to this clause:
Exception 1 — A medical procedure or intervention shall not constitute rape
Exception 2 — Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape
It is Exception 2 which was challenged in the court as it permitted a man to have sex with a minor wife, which resulted in a conflict with laws for minors in India.
What was the conflict between the clause and laws for minors?
Before the Supreme Court verdict, the exception to Section 375 in the IPC did not find a man guilty of rape for having sexual intercourse with wife older than 15 years of age. As child marriage is a crime, this exception created conflict between laws.
The Protection of Children from Sexual Offences (POCSO) Act of 2012 defines 'children' as those aged below 18. It has specific provisions declaring that 'penetrative sexual assault' and 'aggressive penetrative sexual assault' against children below 18 is rape.
Hence, this was the conflict in legislations the court had to deal with. The SC has stated that the exception was arbitrary and violating Articles 14, 15 and 21, apart from not being in consonance with the POCSO Act.
Why is this Supreme Court verdict being considered historic?
The apex court has read down Section 375, Exception 2, of the Indian Penal Code. The court has stated that the exception will be read as "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape."
This is significantly different than the earlier provision which stated "sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape."
However, the court made it clear in the verdict that it has not entered the domain of 'marital rape'. The verdict reads as "Nothing said in this judgment shall be taken to be an observation one way or the other with regard to the issue of marital rape".
But why is the court referring to minor wife? Aren't child marriages illegal in India?
Well, the issue of child marriage was first dealt by the Child Marriage Restraint Act 1929, where the marriageable age for a boy was 21 and the girl was 18. A new legislation, The Prohibition of Child Marriage Act, was drafted in 2006.
Under the new law, boys and girls forced into minor marriage have the option of voiding their marriage up to two years after reaching adulthood. And, in certain circumstances, marriage of minors can be null and void before they reach adulthood.
To understand this, a difference between void and voidable needs to be understood. Void marriage means a marriage which is null and void and therefore has no legal recognition. But a voidable marriage is one that remains valid unless you challenge it in the court and get it struck down under a relevant law.
Hence, in India, a lot of courts, including high courts like Madras HC, have ruled that a child marriage is voidable and not void. It can be annulled only if it’s challenged in court under the Prohibition of Child Marriage Act. Thus, if a man marries a minor woman between 15 and 18, the marriage can be annulled only if challenged in court at the instance of either party.
Are there instances when the courts have stated that legislation prohibiting child marriage will override personal laws of a community?
Muslims and many tribal communities have the custom of marrying a girl once she reaches puberty. When the court states that having sex with a minor wife below 18 amounts to rape, it will impact personal laws as well as tribal customs in a way that a woman married at an early age can still be married but the consummation of marriage cannot happen until she turns 18.
Many Indian Muslim organisations have previously argued that they are not bound by the 2006 law prohibiting child marriage as their personal guarantees them the right. But the Delhi High Court had ruled that Prohibition of Child Marriage Act, 2006 overrides all personal laws and governs each and every citizen of India. Other High Courts like Gujarat, Karnataka and Bombay have also ruled that the 2006 Act overrides all personal laws.
Now, after the historic Triple Talaq verdict, this issue has gained more clarity as the court has ruled on what can be an essential practice to religion and whether it is in consonance with the Constitution or not.
Central government had stated that child marriage is a reality in India. How will this verdict impact communities in which child marriage is acceptable?
When the case was being argued, the central government had in its affidavit admitted that child marriage was a reality in India.
It is estimated that there are 23 million child brides. The government had stated that criminalizing child marriage "would in effect make the children born of these unions illegitimate, which may lead to other social tensions".
In its verdict, the court said that “merely because child marriages have been performed in different parts of the country as custom does not necessarily mean that it's acceptable".
This means that if states explicitly amend the Prohibition of Child Marriage Act, 2006, and make child marriage void ab initio — to be treated as invalid from the outset — then the option of void and voidable would not exist, and until then marriages may happen but consummation cannot happen till a woman is 18. It is yet to be seen if communities challenge this verdict in the SC.
Justice Madan B Lokur had given the example of the stand taken by the Karnataka state legislature which amended the Prohibition of Child Marriage Act, 2006 and made all child marriages void ab initio, thereby ending the confusion of void and voidable. The SC has today urged other states too to make similar amendments, but this is just an advisory and it depends on states whether they would implement this advisory or not.
Exception 1 — A medical procedure or intervention shall not constitute rape
Exception 2 — Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape
It is Exception 2 which was challenged in the court as it permitted a man to have sex with a minor wife, which resulted in a conflict with laws for minors in India.
What was the conflict between the clause and laws for minors?
Before the Supreme Court verdict, the exception to Section 375 in the IPC did not find a man guilty of rape for having sexual intercourse with wife older than 15 years of age. As child marriage is a crime, this exception created conflict between laws.
The Protection of Children from Sexual Offences (POCSO) Act of 2012 defines 'children' as those aged below 18. It has specific provisions declaring that 'penetrative sexual assault' and 'aggressive penetrative sexual assault' against children below 18 is rape.
Hence, this was the conflict in legislations the court had to deal with. The SC has stated that the exception was arbitrary and violating Articles 14, 15 and 21, apart from not being in consonance with the POCSO Act.
Why is this Supreme Court verdict being considered historic?
The apex court has read down Section 375, Exception 2, of the Indian Penal Code. The court has stated that the exception will be read as "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape."
This is significantly different than the earlier provision which stated "sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape."
However, the court made it clear in the verdict that it has not entered the domain of 'marital rape'. The verdict reads as "Nothing said in this judgment shall be taken to be an observation one way or the other with regard to the issue of marital rape".
But why is the court referring to minor wife? Aren't child marriages illegal in India?
Well, the issue of child marriage was first dealt by the Child Marriage Restraint Act 1929, where the marriageable age for a boy was 21 and the girl was 18. A new legislation, The Prohibition of Child Marriage Act, was drafted in 2006.
Under the new law, boys and girls forced into minor marriage have the option of voiding their marriage up to two years after reaching adulthood. And, in certain circumstances, marriage of minors can be null and void before they reach adulthood.
To understand this, a difference between void and voidable needs to be understood. Void marriage means a marriage which is null and void and therefore has no legal recognition. But a voidable marriage is one that remains valid unless you challenge it in the court and get it struck down under a relevant law.
Hence, in India, a lot of courts, including high courts like Madras HC, have ruled that a child marriage is voidable and not void. It can be annulled only if it’s challenged in court under the Prohibition of Child Marriage Act. Thus, if a man marries a minor woman between 15 and 18, the marriage can be annulled only if challenged in court at the instance of either party.
Are there instances when the courts have stated that legislation prohibiting child marriage will override personal laws of a community?
Muslims and many tribal communities have the custom of marrying a girl once she reaches puberty. When the court states that having sex with a minor wife below 18 amounts to rape, it will impact personal laws as well as tribal customs in a way that a woman married at an early age can still be married but the consummation of marriage cannot happen until she turns 18.
Many Indian Muslim organisations have previously argued that they are not bound by the 2006 law prohibiting child marriage as their personal guarantees them the right. But the Delhi High Court had ruled that Prohibition of Child Marriage Act, 2006 overrides all personal laws and governs each and every citizen of India. Other High Courts like Gujarat, Karnataka and Bombay have also ruled that the 2006 Act overrides all personal laws.
Now, after the historic Triple Talaq verdict, this issue has gained more clarity as the court has ruled on what can be an essential practice to religion and whether it is in consonance with the Constitution or not.
Central government had stated that child marriage is a reality in India. How will this verdict impact communities in which child marriage is acceptable?
When the case was being argued, the central government had in its affidavit admitted that child marriage was a reality in India.
It is estimated that there are 23 million child brides. The government had stated that criminalizing child marriage "would in effect make the children born of these unions illegitimate, which may lead to other social tensions".
In its verdict, the court said that “merely because child marriages have been performed in different parts of the country as custom does not necessarily mean that it's acceptable".
This means that if states explicitly amend the Prohibition of Child Marriage Act, 2006, and make child marriage void ab initio — to be treated as invalid from the outset — then the option of void and voidable would not exist, and until then marriages may happen but consummation cannot happen till a woman is 18. It is yet to be seen if communities challenge this verdict in the SC.
Justice Madan B Lokur had given the example of the stand taken by the Karnataka state legislature which amended the Prohibition of Child Marriage Act, 2006 and made all child marriages void ab initio, thereby ending the confusion of void and voidable. The SC has today urged other states too to make similar amendments, but this is just an advisory and it depends on states whether they would implement this advisory or not.
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