Age of consent law can’t apply to child brides, Centre tells SC
India has 23 million child brides and criminalising the “consummation of the marriages” as rape would not be appropriate, the Centre has told the Supreme Court, opposing a petition that wants 18 to be the age of consent for all girls.
In India, rape and child marriage laws disagree on age of consent. Section 375 of the Indian Penal Code says sex with a girl who is below 18 is rape but it has an exception, which says sexual intercourse by a man with his wife, who is 15 or above, is not rape even if it is without her consent.
The provision is contrary counter to the child marriage restraint act that puts 18 as the age of marriage for girls and 21 for men.
Demanding the discrepancy be fixed, an NGO, Independent Thought, told the Supreme Court on Thursday that the inconsistency had split girls below the age of 18 into two categories.
“One, those who are not married and for them, the age of sexual consent is 18. Then there are those who are married and a husband can have sexual intercourse with his wife if she is above the age if 15, irrespective of her consent,” advocate Gaurav Agarwal said, slamming the government for its stand.
Defending Exception 2 in Section 375, the government has said in an affidavit that 46% of the married women between the ages of 18 and 29 had their wedding ceremony before they were 18. “Hence criminalising the consummation of the marriage union as a serious offence such as rape would not be appropriate and practical,” it said.
In effect, India’s child brides do not have protection under Section 375, a point that has also been raised by activists who want marital rape to be declared a criminal offence.
Independent Thought has challenged the discrepancies that emerged after Parliament in 2013 passed a law that raised the age of consent for a girl from 16 to 18. Indian law doesn’t have a provision of age of consent for boys.
The rationale for raising the age of consent was that a younger girl was incapable of realising the consequences of her decision. She was a minor, who was mentally and physically not mature enough to give consent.
But, the government has told the court that child marriages a reality in India where economic and educational development was uneven. It had therefore decided to retain the exception in Section 375.
Agarwal demanded the exception be done away with.
Citing the court’s recent order banning the controversial Islamic practice of instant divorce, Agarwal said like the triple talaq, “this provision in the Indian Penal Code, too, is arbitrary and must be struck down”.