On International day of girl child on October 11, 2017, the Supreme Court of India issued a groundbreaking ruling that both affirmed child marriage as a violation of girls’ constitutional and human rights, as well as recognized non-consensual sex with in child marriage as rape.
The Supreme Court in its judgment in WP(CIVIL) No. 382 of 2013, Independent Thought Vs. U.O.I. and Others, stated that -- whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape? Exception 2 to Section 375 of the Indian Panel Code, 1860 answers this in the negative, but in our opinion sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not.
The exception carved out in IPC creates an unnecessary and artificial distinction between a married girl child and has no rational nexus with any unclear objective sought to be achieved. The artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child. The artificial distinction is contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in international conventions. It is also contrary to the philosophy behind some statutes, the bodily integrity of the girl child and her reproductive choice.
What is equally dreadful, the artificial distinction turns a blind eye to trafficking of the girl child and surely each one of us must discourage trafficking which is such a horrible social evil. It is discriminatory and violative of Article 14 of the Constitution and is inconsistent with the provisions of POCSO, which must prevail.