A girl child below the age of 18 cannot be treated as a commodity having no say over her body, India’s top court said, ruling that sex with a wife below the age of 18 is rape, The Hindu reported. The landmark court decision is likely to affect hundreds of thousands of child brides in the country.
“Human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance,” the Supreme Court bench said.
The court ruling has ended an exception in the law for men married to girls aged between 15 and 18 years of age.
Though the age of consent in India is 18, an exception was made in the criminal law if a man has an intercourse with his wife aged 15 or over. The court said it is “discriminatory, capricious and arbitrary”.
The court said the exception in the law was an “anomaly” which mandated sex with a girl below the age of 18 with or without her consent and termed it a “statutory rape”.
“A child remains a child whether she is described as a street child or a surrendered child or an abandoned child or an adopted child. Similarly, a child remains a child whether she is married child or unmarried child or a divorced child or a separated or widowed child.”- Supreme Court of India
Ending this exception made in the law which held men having sex with their minor wives legal, the court said it “violates the bodily integrity of the girl child”. The court said what was acceptable decades ago may not be acceptable today.
"If a man has sexual intercourse with a wife who is below 18 years, it is an offence. The minor wife can complain against the husband within one year," said the court.
The government of India defended the exception in the law that gives immunity to men having sex with underage wives, saying the “institution of marriage must be protected” and that such laws were made taking into account the “socio-economic realities of life in India”.
"Just because there are child marriages across the country as a tradition, should it be accepted? Times have changed and what was acceptable a few decades ago may not necessarily be acceptable today," the court responded to the government of India’s submission.
The judges also said it was "dreadful that the artificial distinction turns a blind eye to trafficking of the girl child."
