Child marriage and rape law conflict

Many social commentators feel that the government should first ban child marriages

New Delhi: Child marriage is not only an active political subject, it is also a legal subject as many cases are pending before higher courts of India.

There has been a standing legal confusion as to marital rape within prohibited child marriages in India. Marital rape per se is not a crime in India but the position with regard to children is confusing.


While Section 375 of Indian Penal Code (IPC), which was applicable to adults, put an exception and allowed marital rape of a girl child between the age of 15 and 18 years by her husband; another new and progressive legislation Protection of Children from Sexual Offences Act, 2012 disallowed any such sexual relationships.

Thus a Public Interest Litigation (PIL) was filed by non-governmental organisation ‘Independent Thought’ in the Supreme Court (SC) for declaring the exception allowing marital rape within prohibited child marriages as unconstitutional. In a landmark decision on October 10, 2017, the Supreme Court struck down Exception 2 to Section 375 of IPC, which exempted marital rape of girls between the age of 15 and 18 from the purview of rape.

Many social commentators feel that the government should first ban child marriages in toto rather than declaring them voidable.

“Due to age old customs and religious diversity of India, child marriage is rampant in some parts of the country. The government or the Supreme Court should have taken steps first of all to ensure that child marriages do not take place in the first place. According to law, such marriages are not void but voidable. Before Wednesday’s Supreme Court verdict, the exception to Section 375 in Indian Penal Code did not find a man guilty of rape for having sexual intercourse with wife older than 15 years of age. As child marriage is a crime, this exception created clear-cut conflict between laws. The courts or the union government should have addressed this conflict much before,” says Delhi-based social commentator Rashmi Gupta, 49.

Historically, child marriage was outlawed in 1929, under Indian law. However, in British colonial times, the legal minimum age of marriage was set at 15 for girls and 18 for boys.

After independence and adoption of Indian Constitution in 1950, the Child Marriage Act has undergone several revisions.

According to Delhi-based social commentator Madhur Mittal, 45, the latest judgement by the Supreme Court has the effect of completely eradicating child marriage.

“Child marriages are accepted in India because of prevalence of different personal laws. Thus in India, child marriage is not entirely illegal but voidable if challenged by the girl. The child marriage prevention laws have earlier been challenged in Indian courts ... But in future, this Supreme Court judgement will act as a deterrent against child marriage because it directly exposes the husband to criminal prosecution for rape irrespective of personal laws,” says Mittal.

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