A girl below the age of 18 in India is considered a child under the POCSO Act, and yet, a contentious exception under Section 375 (rape) of IPC does not recognise sexual intercourse with a minor wife --  given that she is not below 15 years of age -- as rape.  

Earlier this week, the Centre defended this exception in the Supreme Court stating that the provision was to “protect the institution of marriage”.  

Though child marriage was outlawed in India years ago, in reality, the government claims, there are millions of child brides in the country today.

The SC was hearing a petition by Independent Thought, an NGO which has challenged the validity of the exception under 375.

It contended that the exception is inconsistent with the increased age of consent, i.e. 18 years. So, while sexual intercourse with a girl below the age of 18 legally constitutes as rape with or without consent, this does not hold true in case of a girl who is married and at least 15 years old.

The Centre chose this argument to challenge the petition --

“The institution of marriage must be protected. Otherwise, the children from such marriages will suffer,” said Binu Tamta, the Centre’s lawyer. She added that the socio-economic realities of India could not be ignored and while child marriage was illegal, it was still a reality, Hindustan Times reported.

Meanwhile Gaurav Agarwal, who represented the petitioner, argued, “We see a girl under 18 years of age as a child in POCSO Act, 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. The truth is that a girl under 15 is still a child, married or not. The Parliament has to protect the child.”

Those who have been fighting in favour of declaring marital rape a criminal offence would probably agree with Agarwal, especially given that a minor’s well-being is involved. However, the issue is more complicated than that, says Swagata Raha, a legal researcher with Center for Child and the Law, NLSUI, Bengaluru.

“There can be major fallouts for children and their rights too if a strict interpretation is adopted and sexual intercourse with children between 15-18 years is considered rape. There are situations where both the boy and girl are minors and run away to get married. Even if they engage in consensual sexual activity then, the boy can be booked under POCSO Act and in some cases, potentially be tried as an adult,” Swagata says.

The Supreme Court seems to have similar concerns, she points out. During the hearing, a bench comprising of Justices MB Lokur and Deepak Gupta, said that the boy is not at fault when two teens, below 18 years of age, consensually engage in sexual acts.

However, child rights activists insist that including minors between 15 and 18 years of age under the exception for marital rape acts against the interest of child rights, regardless of the grey areas.

“There should not be any exception, as any sexual activity which involves minor is sexual assault. Under the present law, the question of consent does not arise if the child is under 18 years of age. If this caveat is allowed to exist, people will take advantage of vulnerable children and pass off abuse in the guise of marriage,” says Achyuta, a child rights activist from Hyderabad.

J Sandhya, a child rights activist from Kerala, agrees. “Inclusion of minors in the marital rape exception is a huge blow for child rights. A person can make the child believe she is his wife and abuse her,” she argues.

She adds that such a precedent would confuse police who deal with cases of child marriage where the girl has been sexually assaulted. “The practice in Kerala has been to use POCSO over the exception in section 375,” she says.

Sandhya is referring to the provision POCSO makes for recognising marriage as a ground for aggravated penetrative sexual assault on the child. Unlike section 375 of the IPC, POCSO recognizes sexual assault even if the perpetrator is married to the minor. Section 42A of the POCSO Act says that in case of an inconsistency between an existing law and POCSO, the latter would override the former.

While Sandhya acknowledges that there are cases where minors elope, get married and may engage in sexual activity consensually, she maintains that child rights would suffer a heavier blow if the exception is allowed to be kept under section 375.

Swagata however, insists that the law needs to recognise the autonomy of children, especially once they reach a certain age. And then, she says, that law must recognise that violence happens in personal relationships, including marriage. “If there is violence alleged, protection has to be provided, whether it is claimed by a child or a woman,” she says.

Swagata also says that maintaining a hardline position for or against the marital rape exception would be counterproductive to child rights. “The government should not make the argument that because it is marriage it needs to be protected. Neither can the argument be that because they are between 15 and 18 years sexual intercourse always amounts to rape.  Both ways will harm children,” she argues.

She suggests that the ideal way to go about this would be to keep in mind children’s autonomy and their capability to get into relationships after they reach a certain age.

“The basis for crafting an exception should not be a marital relationship between the victim and the offender. The exception should only be based on whether children in this age group are capable of entering into relationships and whether or not those relationships are consensual. It should be considered whether there was force or grooming involved, especially where the alleged abuser is much older to the victim,” Swagata says.

The Supreme Court meanwhile, has asked for the Centre to acquaint it with appointments of Child Marriage Prohibition Officers (Child Marriage Act) in the country and listed the matter for further hearing on August 31.