Can sex with wife under 18 years of age be sexual assault, SC asks Centre | india-news | Hindustan Times
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Can sex with wife under 18 years of age be sexual assault, SC asks Centre

Can sex with wife, who is above the age of 15 and below 18, be termed as sexual assault under the Protection of Children from Sexual Offences (Pocso) Act, the Supreme Court asked the Centre on Thursday.

india Updated: Feb 03, 2017 22:52 IST
PTI
File photo of the Supreme Court in New Delhi.
File photo of the Supreme Court in New Delhi.(Sunil Saxena/HT Photo)

Can sex with wife, who is above the age of 15 and below 18, be termed as sexual assault under the Protection of Children from Sexual Offences (Pocso) Act, the Supreme Court asked the Centre on Thursday, noting that such an incident would be inconsistent with the IPC which does not hold it as rape

Section 375 (rape) of IPC has an exception clause that says “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”.

Section 5 (n) of Pocso says that sexual intercourse with a child below 18 years is an “aggravated penetrative sexual assault” that can invite penal consequences.

A bench headed by Chief Justice JS Khehar considered the inconsistency highlighted by Nobel laureate Kailash Satyarthi through his NGO Bachpan Bachao Andolan and asked the Centre to consider their representation and file its response in four months.

The bench -- also comprising Justices NV Ramana and DY Chandrachud -- asked the Ministry of Women and Child Development to consider the representation of the NGO, examine it and file a detailed report on the issue.

“If you are still unhappy with the response, you are at liberty to approach the court,” the bench said.

Section 6 of Pocso Act provides punishment of rigorous imprisonment of not less than 10 years life imprisonment for aggravated penetrative sexual assault on a child below 18 years of age.

The PIL filed by advocates Bhuwan Ribhu and Jagjit Singh Chabra said the court should pass an order declaring that the provisions of Pocso shall be mandatorily enforced and applied in all cases of sexual assault upon children, below the age of 18, regardless of their marital status.

The petition has said “in a large number of cases that despite being a child by definition (under the age of 18), provisions of Pocso are not being applied and the benefit of a special act is not being afforded to those children, who by definition fall under Pocso, but who are in a married relationship”.