A Delhi High Court hearing on August 29 saw the Centre admit that child marriages are a ‘social reality’ and continue to take place in India, which was why it decided to retain a 1949 law that allows married girls of 15 and over to have sexual relations with their husbands.
This is an exception to the general law that the age of consent for women is 18, and that any girl under 18 who has sex even with consent is a victim of rape.
The ministry of home affairs submitted before a bench of Chief Justice Rohini G and Justice Sangita Dhingra Sehgal on August 29 that it retained the 1949 law even when it amended the rape law in 2013 so that a married couple could be protected against the criminalisation of their sexual activity, according to the ‘Deccan Chronicle’.
“Although the age of consent is 18 and child marriage is discouraged, marriage below permissible age is avoidable but not void on account of social realities,” said the affidavit submitted by the ministry of home affairs to the bench, as reported by ‘The Indian Express’.
The High Court bench was hearing a PIL that says there is an inconsistency in the amended rape law which protects a husband from being prosecuted if he has unnatural sex with his wife.
‘Unnatural sex’ is administered under section 377 of the Indian Penal Code which criminalises it regardless of the age, gender and marital status of the individuals involved. Section 377 is usually invoked against members of the gay and lesbian communities.
However, according to the PIL, exception 2 of the amended section 375 (the rape law) of the IPC appears to permit any sort of sexual activity, unnatural sex included, between husband and wife, provided the wife is over 15 years of age.
The MHA told the court in its affidavit: “the social, economic and educational development in the country is still uneven and child marriages are taking place… It has been decided to retain the age of 15 years under exception 2 of section 375 (rape) of the IPC so as to give protection to husband and wife against criminalising the sexual activity between them.”
Exception 2 states: “sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape”.
UNICEF reports: “Worldwide, more than 700 million women alive today were married before their 18th birthday. More than one in three (about 250 million) entered into union before age 15. India alone accounts for a third of the global total.”
IndiaSpend.com reports that the age of consent for married girls was 12 in 1982, 13 in 1925, and 15 in 1949. The government amended the law in 2013 to raise the age of consent to 18, but exception 2 of the law, dating from 1949, was retained.
IndiaSpend’s figures for child marriage in India are based on the recent census reports which show that from a total population of 12 million married children, more than 7.8 million girls are under the age of 10. About 84 per cent of these illegally married girls are Hindu and 11 per cent Muslim. “There are as many married children in India as there are people in Jammu & Kashmir,” reports the website.
Feature image credit: theindependentbd.com