Govt defends no action for legal exception allowing forced sex with minor wife

The Centre on Wednesday defended in the Supreme Court a provision in the Indian Penal Code (IPC) that does not penalise a man for forcibly having sex with his wife aged between 15 and 17, saying the exception in rape law was meant to protect the institution of marriage.

Centre made its submission before a bench headed by Justice MB Lokur, which is hearing a petition filed by NGO Independent Thought urging the court to intervene and read down section 375 (2) of IPC – an exception under the rape law – that permits a man to have sex with a girl aged between 15 to 17 if she is married to him.

Citing various other laws related to children, the NGO said there should be uniformity in defining a child. While the law on marriage recognises a 18-year-old girl as a major and its illegal for a girl below that age to marry, the IPC provision on the other hand supports child marriages, the petitioner said.

Centre resisted the NGO’s proposal to raise the age of consent. Binu Tamta told the court institution of marriage must be protected. She quoted from the law on marriage and said wedlock between minors was not void but voidable and child marriages were a reality in India.

“The institution of marriage must be protected. Otherwise, the children from such marriages will suffer,” Tamta said, claiming socio-economic realities of life in India cannot be ignored. Government has claimed there are 23 million child brides in India and reading down the IPC provision would make the husbands susceptible to criminal prosecution.

The court was, however, sceptical and asked Tamta wasn’t the exception an incentive for child marriage.

The court then asked the lawyer to give data on how many child marriage prohibition officers are there and how many cases have been registered under the Child Marriage Prohibition Act, 2006.

Referring to the 23 million child brides, Justice Deepak Gupta – second bench member - said: “This reflects badly on the government.”

NGO’s counsel Gaurav Agrawal said section 375 (2) IPC was arbitrary because it discriminated a girl child who is made to marry before 18. He said rape law makes even consensual sex between a man and girl between 15 and 17 a cognizable offence. “Then why should a girl of the same age suffer,” he asked the bench.