What the Supreme Court's historic judgment says about 'sex with minor wife'
In a landmark judgment, the Supreme Court has criminalised sex with a minor wife. The exception under Section 375 of the Indian Penal Code gave immunity to a husband if the wife was above 15 and below 18 years of age. Doing away with the exception, the court has done a "purposive" interpretation of the law by rather striking it down.
Purposive interpretation means when the court without striking down a certain provision gives it a meaning which is different than the literal meaning of the law. The bench led by justice Madan B Lokur said the present exception is contrary to Article 21 which is about the fundamental right to life and also contradictory to the provisions of Protection of Children from Sexual Offences Act (POCSO) under which the age of consent is 18.
While reading out the judgment, the court said the distinction that the law makes pertaining to age of consent between a married and an unmarried girl is artificial. The court is of the view that the rights of girl child must be actively protected by the state. Justice Lokur said that such marriages also contribute to child trafficking.
Using strong words the court has said that the government needs to curb child marriages which happen on the auspicious occasion of "Akshaya Tritiya" in many parts of the country. Mincing no words, justice Lokur said that the state cannot turn a blind eye to plight in the name of social reality.
The judgment also brings in harmony conflicting laws on the age of consent. While the IPC said a man can have sex with his underage wife 15 or above, even without consent, POCSO prescribed the age of consent to be 18. The Supreme Court also clarified that right now it's not deciding on the issue of marital rape when the husband and wife are both above the age of 18, as the question wasn't brought before the court.
Can you legally marry under 18? Is marriage with a minor or between minors legal?
The law against child marriages deals with prevention and punishment against those who facilitate child marriages, but marriages between minors are not void ab initio (having no legal force from the beginning) unless upon becoming a major one of the parties seek for the annulment of marriage within a prescribed period. So legally one can marry even when one of the parties or both is/are below 18 years of age.
There is another dimension related to the personal laws here. The Muslim Personal Law prescribes the "age of puberty" to be considered as the "age of marriage" which can be anything from 8 years to 18 years. So such marriages will continue, but cannot be consummated till both the parties turn adults. It's not just one personal law, marriages in India are not a civil institution, but have rather remained under the purview and aegis of religion. Hence, the age of marriage shall vary across religions. However, the criminal law applies across religions and so does POCSO.
So, now irrespective of any religion, a marriage cannot be consummated if the wife is a minor. Though the anomalies of personal law will continue to create defence.
Today's judgment is just one of the many steps that the Supreme Court has taken to bring the laws into harmony. Much still needs to be rationalised and reformed to do away with the legal conundrums.