‘Can’t make sex in child marriage crime’

New Delhi: Citing practical impediments, the Centre on Tuesday defended in the Supreme Court the shield offered to a man against prosecution under penal provision for raping a minor if he has sexual intercourse with his “wife” who is more than 15 years old.

Accepting that child marriages were still happening in the country due to uneven economic and educational development, the government submitted that 46 per cent of the married women aged between 18 and 29 had been part of a wedding ceremony before they turned 18.

“Criminalising the consummation of the marriage union, as a serious offence such as rape, would not be appropriate and practical,” submitted senior advocate Rana Mukherjee, appearing for the Centre. The government said that lawmakers had taken a pragmatic view regarding the issue of “marital rape”, as marriage being a social institution needs to be protected.

A bench of Justices Madan B. Lokur and Naveen Gupta is hearing petitions relating to conflict between the Indian Penal Code  (IPC) — which terms children as those aged under 15 years — and Protection of Children from Sexual Offences Act (POCSO) — which terms children as those aged under 18.

The Centre’s arguments remained inconclusive and will continue on Wednesday.

An NGO, while filing the petition, had sought direction to declare exception 2 to Section 375 of the IPC, which shields a man against prosecution under penal provision for raping a minor if his wife is above 15 years,  “violative of Articles 14, 15 and 21 of the Constitution.

It was argued that the provision is contrary to the Prohibition of Child Marriage Act that puts 18 as the age of marriage for girls and 21 for men.

Petitioner NGO Child Rights Trust claimed the exception to Section 375 of IPC permits intrusive sexual intercourse with a girl child aged between 15 and 18 years, only on the ground that she has been “married”.

During the hearing, the apex court also expressed concern over the prevalence of child marriages in the country despite a specific law prohibiting it, saying “these are not marriage but mirages”.

The Centre’s counsel said if need be Parliament will take a call to amend the provisions and suggested that the court should not legislate on the issue. He said that child marriage was abhorrent to the PCMA but these were still happening.

The petitioner said the PCMA cannot be effectively implemented as the exception in Section 375 of the IPC legitimises violence against minor girls within marriage.