The Telegraph
Thursday , August 10 , 2017

Marriage defence for rape

New Delhi, Aug. 9: The Centre today defended in the Supreme Court a provision in the Indian Penal Code that grants immunity to a person from the rape charge provided the victim is his wife and aged between 15 and 17 years, saying the exception in the law was meant to protect the institution of marriage.

"The institution of marriage must be protected. Otherwise, the children from such marriages will suffer," Binu Tamta, an advocate appearing for the Centre, told the bench of Justices Madan B. Lokur and Deepak Gupta.

However, the apex court directed the Centre to furnish within two weeks data relating to the prosecution of those involved in child marriage. The government argued that such marriages must be protected and claimed there were 23 million child brides in the country.

It was not clear what was the starting point for calculating the figure.

The Supreme Court granted the Centre two weeks to place before it data relating to the number of child marriages, the number of prohibition officers appointed by states in keeping with the Prohibition of Child Marriages Act, 2006, and medical records on the impact of such marriages on children.

The Supreme Court was dealing with an appeal by the NGO Independent Thought urging it to strike down Section 375(2) of the IPC, which makes an exception under the rape law by permitting a man to have sex with a girl even if she is between 15 and 17 years old provided she is his wife.

The NGO pointed out that under the Prohibition of Child Marriages Act, the legal age for marriage in India is 18 years for girls and 21 years for boys. It contended that there was no reason for the exception to continue as such immunity fostered child marriages.

Advocate Gaurav Agrawal, appearing for the NGO, said that since most of the girls involved in child marriages were between 12 and 17 years of age, the brides were left without any remedy as they cannot file rape cases against their husbands because of the immunity.

According to Agrawal, there are two crore child brides in India.

Tamta, the advocate appearing for the Centre, told the court that some laws had been enacted taking into account the "socio-economic realities of life in India" and there was no need for court interference.

"Isn't this an incentive for child marriage?" Justice Lokur asked. Justice Gupta remarked: "This reflects badly on the government."

Although the Prohibition of Child Marriages Act prohibits marriage between minors, such marriages become illegal only if an aggrieved party moves court seeking annulment within two years of attaining majority.

Alternatively, the child as a minor can file a petition in court through a guardian for annulling the marriage. But since in most cases the parents or guardians are the ones who give away the child in marriage, this legal mode is not common, Agrawal told the court.

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