Marriage With Minor Need Not Mean Sex With Her: Supreme Court

As the Supreme Court continued to hear counsel on the consequences of striking down the child marriage exception to rape, the two Judge bench of Justices Madan B. Lokur and Deepak Gupta put pointed questions to them on the implications of various options before the bench.  Towards the end of  today's proceedings, Justice Lokur observed that a minor wife may not take the trouble of voiding her marriage under the law, but she could well say that she does not want to have sexual intercourse with her husband, till she is 18 years of age.  Should not the law protect her, the bench asked the Central Government's senior counsel,  Rana Mukherjee.

Rana Mukherjee replied that marriage is marriage. Parliament was conscious that child marriage would involve forced sexual intercourse between a minor wife and her husband.

Earlier, Jayna Kothari, counsel for the  intervener, Child Rights Trust, Bengaluru, made her submissions throughout the day, with the bench intervening to make crucial observations.  She began explaining the significance of the amendment carried out by Karnataka to the Prohibition of Child Marriage Act this year.  Karnataka's amendment has made child marriage void ab initio.  It is the only State to do so, as in all other States, it is voidable, at the option of the contracting parties.

Justice Deepak Gupta intervened to say that the Exception to Section 375 IPC, providing exception from the offence of rape to the husbands of girls of 15-18 age group cannot apply to Karnataka in view of the State amendment.  Kothari added that the State of Karnataka has to take a lot of effort, but a start has been made.

Both the bench and the counsel agreed that they should not enter the larger question of legality of marital rape, and confine themselves to the issue of child brides being subjected to sexual intercourse in  the guise of marriage. “Child brides are more prone to sexual violence than others”, it was suggested.

Justice Deepak Gupta observed: “We can’t wish it away. Illegitimate child is unacceptable. {If the bench strikes it down, children born out of such wedlock, will have no protection, and become illegitimate, it was suggested).  The number of child marriages is rising, while the percentage is coming down.   Is there a middle path?”

Justice Deepak Gupta added that even the Government says it is an abhorrent practice.  But the court orders must be capable of being implemented; we are not here to give lectures, he said.  He also emphasised that although child marriages are voidable, 99 per cent of the child brides do not seek annulment.

Justice Deepak Gupta was also concerned about the jurisdictional aspect, as Parliament was conscious of the inconsistency in the laws, while enacting the Criminal Law Amendment in 2013.  He asked whether the girls of 15-18 age group are not capable of giving consent for sexual intercourse.

Gaurav Agrawal, counsel for the petitioner, Independent Thought, told the bench that the prayer in the petition to strike the Exception down, is widely worded.  “Treat it as 18 irrespective of marital status” he pleaded.  The petition did not seek blanket declaration of unconstitutionality of the Exception, he clarified.

Rana Mukherjee explained that Parliament retained the  Exception to Section 375 IPC in 2013, despite increasing the age of consent from 16 to 18, because it considered child marriage in the country as traditional.  Justice Lokur responded saying that reconciling the inconsistency is not difficult, as marriage is completely different from sexual intercourse, and the child can opt for the continuance of marriage, and still say no to sexual intercourse till she is 18 years of age.

Rana Mukherjee emphasised that Parliament retained the concept of permitting sexual intercourse in child marriages, because it was conscious of the social obligation.

Arguments will continue tomorrow.