Marital rape: India criminalises sexual intercourse by husband with wife below 18

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A doll is seen in the backyard of the mobile home where three children and their mother were found hanged in Hudson Oaks, Texas May 29, 2007. Reuters/Jessica Rinaldi

The Indian Supreme Court has criminalised sexual intercourse with girls below 18 years of age regardless if the couple is married. The verdict was particularly significant as people from all over the world celebrated International Day of the Girl Child.

In its ruling on Wednesday, the two-judge bench said the exemption in the rape law was unconstitutional, discriminatory, capricious and arbitrary. The ruling said it violates the bodily integrity of the girl child, adding that if a man has sexual intercourse with a wife below 18, it is an offense.

Justices Madan B Lokur and Deepak Gupta read down this exception and argued its inconsistency with other statutes dealing with children like The Prohibition of Prevention of Child Marriage Act (PCMA), The Protection of Children from Sexual Offences (POCSO) Act and the Juvenile Justice Act, which have fixed the minimum age of the girl child for sexual relations at 18.

The court said sexual intercourse with a girl below 18 is rape regardless of whether she is married or not. “The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved,” it also said, adding that artificial distinction is certainly not in the interest of the girl, The Indian Express reports.

Section 375 of the Indian Penal Code has an exception clause stating that intercourse or sexual act by a man with his wife, not below 15 years, is not rape. The age of consent, however, is 18.

Campaigners celebrated the decision and saw it as landmark. Divya Srinivasan from Equality Now said the judgment is a step forward in protecting girls from abuse and exploitation.

Srinivasan hopes that this decision by the Supreme Court will encourage the Indian government to protect all women by removing the marital rape exemption in all cases. Activists say it is hard for victims to speak out about sexual violence by their husbands.

Poonam Muttreja, executive director of the Population Foundation of India, said the verdict was a timely step in the right direction for the discourse on marital rape. “I would urge the courts to take cognizance of the predicament of adult women who live in fear of rape or sexual violence at the hands of their spouse and in the security of her home,” Muttreja said, according to Reuters.

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