New Delhi: The Supreme Court on Wednesday reserved its judgment on validity of a legal provision, which decriminalises sexual intercourse of a man with a minor girl in a marriage.
A clause in Section 375 (rape) in the Indian Penal Code makes an exception on age of consent of wife for sex. It lays down that "sexual acts by a man with his own wife, not being under 15 years of age, is not rape".
Therefore, what this provision essentially does is that it grants immunity from criminal prosecution to men who are married to girls between 15 and 18 years of age.
Advocate Gaurav Agrawal, representing petitioner NGO Independent Thought, claimed that this immunity is not in the interest of the girl child, neither physically nor mentally.
Besides, Agrawal has asserted that the exception clause in the IPC also falls foul of the the Protection of Children from Sexual Offences (POCSO) Act, under which anybody below 18 is a child and is thus legally not capable of giving consent for sex. Regardless of consent, sex with a girl under 18 amounts to statutory rape.
According to the petition, since POCSO is a specific law enacted to protect child's interest, it will override the IPC provision and hence, a man would invite criminal prosecution if he indulges in sexual intercourse with a minor girl, irrespective of the fact whether they are married or not.
The Central government, on the other hand, defended the IPC provision on the basis of "socio-economic" reality of India where child marriages are still rampant in some of the states.
The government told the top court that marriage is a sacrosanct social institution and that it had to be protected. About the modification in the law, it asked the Court to leave it to the wisdom of the Parliament to decide whether the existing legal regime requires a re-look.
This PIL was filed in the Supreme Court in 2013, immediately after the Parliament approved amendments in the criminal law in the wake of the December 2012 Delhi gangrape case.
At various points in the petition, the PIL questioned the haste in amending the law, citing several inconsistencies and the one between the IPC and POCSO happens to be just one of them.
The case was finally heard at length in the last two weeks. The bench of Justices Madan B Lokur and Deepak Gupta began by clarifying that the Court will not enter into arguments on marital rape but will confine these proceedings to the question whether sex with a minor wife can be excused from criminal prosecution. It took note of the fact that Justice JS Verma Committee did recommend for making marital rape a crime but the Parliament turned it down.
The proceedings, however, could not remain devoid of arguments on marital rape.
On Wednesday, the judges demonstrated legal conundrum as they first observed that the Court cannot create an offence and not make marital rape a crime. "We cannot legislate," it said.
But minutes later, the judges questioned the government: "So under the present laws, harassing a woman is a crime under the IPC but abusing her sexually isn't only because she is married?"
The judges further asked the government's lawyer: "Suppose a woman kills her husband as he tries to force himself upon her. Will it amount to murder or not?" The lawyer said no, saying the law provides an immunity for private defense. But the bench retorted: "You are wrong. She will be charged for murder since sexual intercourse by a husband, regardless of consent, will never amount to rape under the IPC."
During the hearing, the judges also evaluated the perils of making marital rape, in cases of minor wives and also otherwise, a crime but kept wondering if a woman could be left without a recourse only because she is married.
The Court will soon deliver its verdict on the PIL, which wants the exception clause in the IPC to go.
Despite the reservations expressed by them at the outset, the judges will find it very difficult to avoid answering if they can rule upon the validity of a law that immunes sex with minor girls from prosecution regardless of consent, will another class of women remain unbenefited just because they are major?
If the Supreme Court is going to indirectly rule upon marital rape for minor girls, it will only be appropriate that the apex court, in a PIL jurisdiction, also acknowledges and deals with the gravity of the issue in entirety.
Yes, even the Supreme Court cannot create an offence or direct the Parliament to enact a specific law but Indian judicial history is replete with examples when the apex court has shown the way and the lawmakers have followed the lead.
Sexual harassment at workplace, victim compensation fund, women' property rights, bonded labour, electoral reforms, investigation into encounter killings are just a few illustrations that will come handy.
The last two Constitution Bench verdicts on triple talaq and right to privacy will only amplify that the Supreme Court has delivered verdicts that have made India a better place for woman.
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