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Child Marital Rape: Sex With Underage Wives is Rape, Supreme Court Rules

“Exception in rape law is discriminatory, capricious and arbitrary. It violates bodily integrity of the girl child,” said the court.

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The issue of marital rape in India has been on the boil over the past one year. In India, legally, marital rape does not exist. So far, a husband could have sexual intercourse with his wife, if she is above the age of 15 years, irrespective of her consent. The legal age of sexual consent in all other cases is 18.

Independent Thought, a “National Human Rights organization working towards equity, justice and mutual respect”, filed a petition with the Supreme Court questioning this logic. As they pointed out, the law is at odds with other laws like The Protection of Children from Sexual Offences Act (POCSO) and the legal age of marriage.

Even though the issue of safety of women has taken centre stage in India, debates around whether marital rape should be punishable are still doing the rounds.

As was pointed out in Court, India faced an odd situation wherein any sexual activity with a child below 18 is rape, and marriage to a minor is illegal, but a man can forcibly have sex with a 16-year-old girl, as long as he is already married to her. The Centre defended the logic in Court, by arguing that the law was in this manner to protect the ‘institution of marriage’.

The Supreme Court disagreed. “Exception in rape law is discriminatory, capricious and arbitrary. It violates bodily integrity of the girl child,” said the court. “If a man has sexual intercourse with a wife who is below 18 years, it is an offence. The minor wife can complain against the husband within one year,” the court declared.

As per the Apex Court, any sexual relations with an underage girl by a man will be considered illegal and seen as rape, eliminating a crucial loophole. The Court stated that it did not want to go into the debate around marital rape and asked the Centre to consider the issue in Parliament.