New Delhi, Oct. 11: The Supreme Court today rejected the Centre's argument that child marriage has become a reality in India that cannot be wished away and that sexual intercourse with a wife below 18 years is not an offence.
The contentions had cropped up during the hearing of the petition on which the bench of Justices Madan B. Lokur and Deepak Gupta today criminalised sexual intercourse with a wife aged below 18.
The Centre's counter-affidavit referred to the National Family Health Survey in 2005 that stated that 46 per cent of women in India between the ages of 18 and 29 years had been married off before they turned 18. It is also estimated that there are around 23 million child brides in the country.
As a remedy for child brides, the counter-affidavit had drawn attention to Section 3 of the Prohibition of Child Marriage Act, 2006.
Under that section, a child marriage can be declared void only if a petition is filed within two years of the person attaining majority and by approaching an appropriate court of law.
The Centre had also contended that under Section 13(2)(iv) of the Hindu Marriage Act, 1955, a child bride can petition for divorce on the ground that her marriage, whether consummated or not, was solemnised before she turned 15 and that she had repudiated the marriage after attaining that age but before turning 18.
Rejecting the argument, Justices Lokur said: "There can be no doubt that if a girl child is forced by her husband into sexual intercourse against her will or without her consent, it would amount to a violation of her human right to liberty or her dignity guaranteed by the Constitution or at least embodied in international conventions accepted by India, such as the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women."
The court agreed with the contention of the petitioner NGO, Independent Thought, that the IPC exception had become illogical and unconstitutional in view of various other legislation related to the girl child and subsequent laws.
The related laws include the Prohibition of Child Marriage Act, 2006, Juvenile Justice (care and protection of children) Act, 2015, Protection of Women from Domestic Violence Act, 2005, Hindu Marriage Act, 1955, and the Protection of Children from Sexual Offences (POCSO), 2012, which mandate that any sexual relationship with a girl who is less than 18 years is illegal.
The Supreme Court said there was no real or material difference between the definition of rape under IPC Section 375 and that of penetrative sexual assault under Section 3 of the POCSO Act.
"In the modern age, when we talk of gender equality, the girl child must be given equal opportunity to develop like a male child. In fact, in my view, because of the patriarchal nature of our society, some extra benefit must be showered upon the girl child to ensure that she is not deprived of her right to life, which would include her right to grow and develop physically, mentally and economically as an independent self-sufficient female adult," Justice Gupta said in his judgment.
"The State is talking about the reality of child marriages. What about the reality of the rights of the girl child? Can this helpless, underprivileged girl be deprived of her right to say 'yes' or 'no' to marriage? Can she be deprived of her right to say 'yes' or 'no' to having sex with her husband, even if she has consented to the marriage? In my view, there is only one answer to this and the answer must be a resounding 'NO'," the judgment said.
It said the preferred interpretation of the law must be the one that protects the human and fundamental rights of the child and the one that ensures the good health of the child, not the one that tries to say that though the practice is "evil", it should be decriminalised because it has been going on for a long time.
The court said the social cost of child marriage was itself enormous.
It said the social cost was in addition to the economic cost incurred by the country, which would be obliged to take care of infants who might be malnourished and sickly and also the young mother who might require medical assistance.
"All these costs eventually add up and apparently only for supporting a pernicious practice. We can only express the hope that the Government of India and the state governments intensively study and analyse these and other reports and take an informed decision on the effective implementation of the Prohibition of Child Marriage Act, 2006, and actively prohibit child marriage, which encourages sexual intercourse with a girl child," the court said.
Issuing a clarification, the court said: "We make it clear that we have refrained from making any observation with regard to the marital rape of a woman who is 18 years of age and above since that issue is not before us at all. Therefore, we should not be understood to advert to that issue even collaterally."