Thursday, 19 October 2017
Latest news
Main » India's high court rules having sex with child brides is rape

India's high court rules having sex with child brides is rape

13 October 2017

The exception clause (2) under Section 375 IPC (which deals with rape) was challenged by NGO Independent Thought through a petition.

Under the Indian Penal Code, it is an offence to have sex with a girl below 18 years of age, regardless of consent.

Marriage to girls under 18 and boys under 21 is banned in India, but the practice of child marriage is widely prevalent in backward and rural areas amid weak enforcement of laws, poverty and patriarchal social norms. However, the exception clause retained the age of consent for married girls as 15 years, depriving married girls between the ages of 15 to 18 of legal protection against forced sexual intercourse.

This means married girls who are under 18 can accuse their husbands of rape, however they have to do so within one year of the alleged incident.

For instance, while it is now illegal for a man to have sex with his wife if she's in the age group of 15 to 18, the marriage itself can continue.

More news: Hillary Clinton 'shocked and appalled' by Weinstein accusations

Justice Lokur in his separate judgment said, "India realizes the dangers of early marriages, it is merely dishing out platitudes and has not taken any concrete steps to protect the girl child from marital rape, except enacting the POCSO Act".

Wednesday's landmark decision, which coincided with International Day of the Girl Child, also raised the age of consent for all women to 18.

Importantly, Justice Lokur's reference to observations of the Supreme Court in Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1 that "legislations with pronounced "protective discrimination" aims...potentially serve as double-edged swords" and that such legislations "should not be only assessed on its proposed aims but rather on the implications and the effects" would apply in equal measure to the POCSO Act.

The Delhi High Court is now hearing petitions asking that marital rape be recognised as a criminal offence. It was also argued that if one of the parties to the act is a conservative person and is not exposed to the various ways and systems of the world, mere reluctance would also be sufficient.

Here the question that arises is, how can anyone decide if the no is a feeble no or not and whether it was really a no or a not be assumed as yes.?

More news: Jerry Jones: Dallas Cowboys who don't stand for anthem won't play

"A minor girl being abused by her husband will tell her mother: 'I'm feeling pain, [sex] is uncomfortable, please help me, '" she said. The decriminalisation of marital rape in various legal regimes is due to a very outdated rule known as Hale's principle.

Also, the Protection of Children from Sexual Offenses Act, enacted in 2012, states that minors do not have the right to consent to sex.

But the reality in India didn't match the laws. It is high time that the government takes that message on board.

Marital rape is not a crime in India, and Prime Minister Narendra Modi's right-wing government believes criminalizing marital rape could destabilize marriages and make men vulnerable to harassment by their wives.

It is against the interest of the girl child as well, contended the petitioners.

More news: Nokia scraps VR camera division - over 300 employees affected

India's high court rules having sex with child brides is rape