Rape law: SC has removed anomaly

The Supreme Court has corrected a longstanding mistake in the country’s penal law by ruling that sex with a minor girl below 18 years of age, whether she is married or not, is rape. It has removed an anomaly in Section 275 of the IPC, which provided an exception by stating that a sexual act or intercourse by a man with his wife, not below 15 years, is not rape. It is surprising that this exception continued to be in the books even after rape became more broadly defined and the health, education and welfare of girls, especially minor girls, have received greater attention. In 2013, the age of consent for sexual relations for girls was raised from 16 to 18 years, but the continuing exception meant that the age of consent for married girls was 15. Therefore, married girls between 15 and 18 had no legal protection for their rights. The court has now aligned the various laws relating to sex with minors and brought them in line with the rights of children and girls.

The ruling is welcome as a correction, clarification and warning. It sought to remove what the court described as an unnecessary and artificial distinction between a married girl child and an unmarried girl child in the matter of rights. It is superfluous in a sense, because what is made clear and sought to be enforced was already implicit in law. If the legal age of marriage for a girl is 18 years, her marriage before she attains that age is null and void under the law. So, strictly speaking, there would be no need for the court to rule that sex with a minor wife is rape. A man who marries an underage girl is already guilty of child marriage in the first place. Rape then becomes an aggravated charge.

When the court clearly spelt out that sex with a minor wife is rape, it was only acknowledging the fact that child marriage, despite being illegal, is a widespread practice in the country.

The verdict raises some issues, such as whether all those who are now married to girls aged between 15 and 18 may be proceeded against for rape. These may have to be addressed at the legal and practical levels. It will make the campaign and fight against child marriage stronger. While the ruling will plug the legal loopholes provided by the exemption, the bigger fight is at the social level. Child marriage is still rampant in the country and finds acceptability among some sections of the population. The judgement is a reminder of the need to fight the social evil at all levels.

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