Plea against IPC clause on age of sexual consent

‘We see a girl under 18 as a child in POCSO, but once she is married, she is no more a child as per IPC’

NEW DELHI, 09/08/2013: INDEX-Supreme Court of India, New Delhi. August 09, 2013. Photo: Shanker Chakravarty

As the Centre said Parliament must have thought it ‘pragmatic’ to reduce the age of consent for sexual relations for married girls from 18 to 15 as the child marriage system still exists in the country, the Supreme Court on Wednesday asked the government to provide details of the number of child marriage prohibition officers and prosecutions initiated under the Child Marriage Act in the past three years.

A Bench of Justices Madan B. Lokur and Deepak Gupta is hearing a petition by NGO Independent Thought challenging the Exception 2 to Section 375 (rape) of the Indian Penal Code, which permits “intrusive sexual intercourse with a girl aged between 15 and 18 only on the ground that she is married.”

‘Discriminatory law’

The NGO, represented by advocate Gaurav Agarwal, submitted that this statutory exception to rape was violative of right to life, liberty, equality and was discriminatory. The Exception is part of the Criminal Law (Amendment) Act of 2013 and is contrary to the anti-child sex abuse law, the Protection of Children from Sexual Offences Act of 2012 (POCSO).

Mr. Agarwal said the law “violates the health of not only the girl child concerned, but also generations to come.” He said there were 23 million child brides in India, and there had hardly been over six convictions under the anti-child marriage law. “We see a girl under 18 as a child in POCSO, but once she is married, she is no more a child under the Exception 2 to Section 375 of the IPC. This is totally inconsistent,” Mr. Agarwal said.

Court’s caution

However, Justice Gupta said there may be a flip side if the court quashed this exception. “Let’s say a 17-year-old boy gets married to a 16-year-old girl. If a complaint is filed, the boy stands the chance of getting convicted for seven years. But the parents, the real culprits, may get off with a few months’ imprisonment,” Justice Gupta observed.

Justice Lokur observed that it cannot be “presumed that just because a girl is less than 18, she does not understand the consequences of her actions. Under the new Juvenile Justice Act, a girl between the age of 16 and 18, if she commits murder, can be tried by an adult court.”