The Supreme Court's October 11 ruling which stated that intercourse between a man and his wife under 18 years of age will be considered as rape has sparked a fresh debate on the rights of women, female sexuality and consensual sex between adolescents, the social realities.
"If the government thinks 16-year-old girls are adults, they should also be issued driving licenses and allowed to cast votes", Senator Kamran said. Punishable laws if implemented stringently too would dissuade elders from marrying their children at an young age!
The two judges wrote separate judgments totalling 127 pages.
The exception had remained an anomaly because Section 375 itself mandated that sex with a girl below 18 years of age, with or without her consent, was statutory rape.
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He said the policy goal is to ensure equal access to basic education and promote retention, competition and high performance for all pupils which require attention and provisions for particularly the disadvantaged children especially girls at the basic education level.
"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. The artificial distinction is discriminatory and is definitely not in the interest of the girl child". The clause took away the right of a girl child to bodily integrity and reproductive choice.
The anomalies in the existing laws pertaining to the criminality of rape have often led to exploitation of minor girls in India.
India's Parliament raised the age of consent to 18 years in 2013, but no change was made in a legal exception.
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Justice Gupta, in a separate judgment, dealt with the abysmally low number of prosecutions and annulments of marriage filed under Prohibition of Child Marriage Act (PCMA). Despite improvement in literacy levels, child marriages are still common in different parts of the country. She added that the apex court must consider such instances and come up with a solution for all.
Noting that child marriage is an abhorrent practice that severely impacts the health and well being of children, the consequences being greater for the girl child who are more vulnerable to physical and sexual violence at the hands of the family and the partner, the apex court has observed that a girl below the age of 18 does not cease to be a child in the eyes of law simply because she has been married at an early age.
"Hence, criminalising the consummation of a marriage with such a serious offence such as rape would not be appropriate and practical", the government argued, according the Times of India.
Countering this, the court said the exception clause "statutorily cancels a girl child's right to decline sexual intercourse with her husband". "The government tried to somehow legitimise child marriage", Justice Lokur shot back.
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