Child Marital Rape: Sex With Underage Wives is Rape, Supreme Court Rules

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The Indian supreme court has held that sexual intercourse with a girl below the age of 18 years will automatically qualify as rape, even if the woman is the wife of the accused.

The court said that the exception to a husband whose wife is between 15 and 18 years of age can not survive and needs to be done away with. A husband can have sexual intercourse with his wife, if she is above the age of 15 years irrespective of her consent.

As was pointed out in Court, India faced an odd situation wherein any sexual activity with a child below 18 is rape, and marriage to a minor is illegal, but a man can forcibly have sex with a 16-year-old girl, as long as he is already married to her.

The apex court, which had earlier stated that it does not wish to get into the domain of marital rape, said that the age of consent is 18 years for a woman and that can not be whittled down.

In India, the rape and child marriage laws are conflicting with respect to the age of consent.

A bench headed by Justice Madan B Lokur had on September 6 asked the Centre how Parliament could create an exception in a law when the age of consent is 18.

It, however, had said that it did not want to go into the aspect of marital rape.

India's government says the practice of child marriage is "an obstacle to almost every developmental goal: eradicating poverty and hunger; achieving universal primary education; promoting gender equality; protecting children's lives; and improving women's health".

The petitioner had sought the court's direction to declare the legal exception under the IPC as violative of Articles 14 (equality under law) and 21 (right to life) of the Constitution of India to the extent that it permits intrusive sexual intercourse with a girl child aged between 15 and 18 years, only on the ground of her being married.

Adding further to this, the court said, "Exception in rape law is discriminatory, capricious and arbitrary..."

The Supreme Court said that it can not turn a blind eye to girl child trafficking and asked the state to take steps to prevent child marriages.

Under Indian law, sex with a minor (below 18) is a crime.

The judgement said that girls under 18 would be able to charge their husbands with rape, as long as they complained within one year of being forced to have sexual relations.

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