Age of consent in India
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The amendment raising the age of consent from 16 to 18 years came after public uproar in the aftermath of the Nirbhaya gang-rape. The move had led to a major controversy with the Congress-led UPA split over the issue. The argument behind raising the age was to bring parity to the age of minor among various criminal laws and also prevent trafficking of young girls for labour and sex trade. | The amendment raising the age of consent from 16 to 18 years came after public uproar in the aftermath of the Nirbhaya gang-rape. The move had led to a major controversy with the Congress-led UPA split over the issue. The argument behind raising the age was to bring parity to the age of minor among various criminal laws and also prevent trafficking of young girls for labour and sex trade. | ||
| − | =The legal position in a nutshell= | + | =The pre-Oct 2017 legal position in a nutshell= |
India’s age of consent for heterosexual sex has traditionally been 16 years except in Manipur, where it is 14. If the partners are married then a lower age of consent applies (13 in Manipur and, traditionally, 15 in the rest of India).([http://www.thebrothersnetwork.net/dating/2013/09/laws-surrounding-the-term-age-of-consent.html The Brothers Network], [https://zedenrecht.wordpress.com/2012/01/19/age-of-consent-criminal-liability/ Zedenrecht]) | India’s age of consent for heterosexual sex has traditionally been 16 years except in Manipur, where it is 14. If the partners are married then a lower age of consent applies (13 in Manipur and, traditionally, 15 in the rest of India).([http://www.thebrothersnetwork.net/dating/2013/09/laws-surrounding-the-term-age-of-consent.html The Brothers Network], [https://zedenrecht.wordpress.com/2012/01/19/age-of-consent-criminal-liability/ Zedenrecht]) | ||
Revision as of 12:49, 12 October 2017
(It had not been amended till 31Jan 2016).
The original document can be seen on the government website India Code.nic.in
2017, 31 Aug Regarding 375, exception 2, the SC said that cases of a minor wife could well be dealt with under the POCSO law and proceedings could be initiated against the husband.
2017, Oct: Sex with minor wife to be considered rape: SC (Details below)
Though it is clearly an old version of the IPC the age of consent mentioned is the same as stated on the official, government website NCW.nic.in on the same day.
Please disregard both.
This is a collection of articles archived for the excellence of their content. |
Contents |
The evolution of the consent laws in India
Events leading to the age of consent law, 1891
The tricky matter of the age of consent | May 2, 2013 | IndiaTimes/ The Times of India
In 1886 [the] age of consent was 10: at the time a large part of society wondered whether government should at all have laws on an issue that was believed to be a totally a socio-religious matter. The Times of India [had then given] acres of space to debate over reformer Behramji Malabari's paper on plight of widows and need for remarriage laws.
TOI destroyed one fallacy after another put forth by the orthodox. It put paid to the notion that 'infant marriage' had religious sanction of the 'Shastras'. Via letters -to-editors and transcripts of speeches at various sabhas, it busted the myth that the practice was confined to Hindus, showing its prevalence among Parsis and Muslims too. Hence, not a religious matter. It wasn't until the furore over two cases that a serious move was made towards legislation.
One was the case of Rukmabai, married at 2, who later refused to recognise the marriage and was taken to court by her husband.
The second of Phulmoni Das, (11) raped by her 35-year-old husband in 1889.
TOI campaigned until the law on age of consent was passed in 1891.
1860-2013
From Manoj Mitta/ The Times of India: 2015== The Times of India Jul 11 2015
Identity Crisis - Consent: Underage wives can have sex, not teens
Manoj Mitta
Girls between 16 and 18 are now allowed less sexual freedom than their moms' generation, thanks to retrograde changes in the law
When the Indian Penal Code (IPC) was enacted way back in 1860, the age of consent -the minimum age at which a girl is legally competent to have consensual sex -was fixed at 10. In other words, even if she was a willing partner, sex with a girl less than 10 was deemed to be statutory rape. In 1891, the colonial government raised the age of consent to 12, following outrage over the death in Bengal of child bride Phulmonee as a result of “consensual sex“ with her adult husband.Yet, conservatives led by no less than Bal Gangadhar Tilak attacked the incremental reform as “dangerous precedent“ and “interference with Hinduism“.
After a couple of more such incremental reforms, the age of consent stabilized in 1940 at 16, which is the global norm. Seven decades later, in an even more liberal scenario, conservative forces struck again, this time to increase -not decrease -the age of consent. What gave them the opportunity to demand raising the age of consent from 16 to 18 was the process of enacting a special law, the Protection of Children from Sexual Offences (POCSO) Bill. In 2011, a parliamentary standing committee headed by Oscar Fernandes recommended that change in the age of consent despite opposition from the ministry of women and child development. Strengthened by the standing committee's report, the conservative opinion forced the Manmohan Singh government to enhance the age of consent to 18 in the POCSO bill passed in the Budget session of 2012.
As a corollary, the government was confronted with the demand to make a corresponding change in the IPC. But the public outrage over the Nirbhaya gang rape in December 2012 came in the way as feminist groups lobbied with the government to keep the age of consent at 16. Eventually, the conservatives trumped the liber als when an all-party meeting compelled the government to drop the proposal of rolling back the age of consent to 16 in POCSO. So when rape provisions were tightened in 2013, the age of consent was raised to 18 in the IPC too.The resulting legal landscape is fraught with anomalies, making girls more vulnerable than ever before.
ILLIBERAL COMPANY
The most plausible justification offered for the enhanced age of consent is that it would be on a par with the age of marriage for women. But then, since the Prohibition of Child Marriage Act, 2006 (as discussed in an earlier article in this series) does not actually invalidate marriage of women below 18, the age of consent does not apply to an underage wife, unless she is below 15. The IPC continues to exclude underage wives between 15 and 18 from the ambit of rape. This despite the post-Nirbhaya recommendation of the Justice Verma Committee to remove the immunity granted to marital rape. For all the changes made to the definition of rape in 2013, it still bears this caveat: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.“ Thus, the Manmohan Singh government privileged the institution of marriage over the woman's sexual autonomy . This retrograde policy is being perpetuated by the Narendra Modi government, as borne out by a reply in Parliament in April. Citing a UN estimate that 75% of married women in India were subjected to marital rape, DMK MP K Kanimozhi had asked whether the government was planning to criminalize it. Junior home minister H P Chaudhary said: “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mind set of the society to treat marriage as a sacrament.“ The upshot is that while the age of consent has been increased for unmarried women to 18, it remains at 15 for those who are married.
The worst hit by the changes made in 2012 (through POCSO) and in 2013 (through IPC) are unmarried girls between 16 and 18.Till these changes kicked in, India, like other liberal societies, had allowed girls of this age bracket to engage in consensual sex. When it had this enlightened approach, India was in the company of Britain, Norway , Canada, Switzerland, Israel, Russia, South Africa and a majority of the states of the US.By criminalizing teenage sex in the manner it did, India has since landed in the company of illiberal democracies such as Rwanda, Uganda, Chile, Peru and Egypt.The only countries that are harsher than India on teenage sex are those which do not recognize any age of consent at all. In Islamic countries like Saudi Arabia, Yemen, Iran and Pakistan, any sex outside marriage is criminal and liable to severe punishment, even if it is entirely consensual.
BAD TO WORSE
Historians in the future may be hard put to figure why India chose to turn illiberal in this regard six decades after Independence. It is indeed ironic that while everything else has become more accessible, adolescent girls between 16 and 18 are now allowed less sexual freedom than their predecessors. Women's groups have therefore been campaigning that normal sexual exploration during growing-up years should not be criminalized.
The situation threatens to worsen once the new juvenile justice bill is passed into law. For, even if the male partner is also between 16 and 18, he will then be liable to be tried as an adult. One of the key provisions of the bill, which was passed by the Lok Sabha in May and is awaiting the nod of the Rajya Sabha, permits juveniles between 16 and 18 to be tried as adults for heinous offences, including rape. From the viewpoint of a girl between 16 and 18, this compounds the legal changes made in 2012 and 2013 which have already made it impossible for her to have consensual sex without exposing her partner to the charge of statutory rape. And now, if the Rajya Sabha too clears the juvenile justice bill, then her partner may be punished as an adult criminal, with a minimum sentence of seven years, even if he is of her age group.Teenage sex has never been more stigmatized in India.
1921-2006
From Manipur's The Sangai Express, 2011
Though this excellent article comes from Manipur (the author’s name has not been stated), it covers the evolution of consent laws in India as a whole.
Child Marriage, Drug Abuse and Unemployment in Manipur
Mar 25, 2011 The Sangai Express
Let us briefly scan the measures implemented in the form of law prohibiting child marriage in India.
In 1921, the problem of child marriage was first posed in British India by Lala Girdhari Lal asking the government whether it would undertake legislation prohibiting the marriage of a girl below the age of 11 years and of a boy below the age of 14 years. The government expressed the view that, due to backward social conditions in the country, initiative in the matter should come from the private individual rather than from the government. In February 1922, Rai Bahadur Bakshi Sohanlal moved a bill in the assembly to raise the age of consent in both marital and extra-marital cases to 14. But some states were against it and only two states Bombay and Uttar Pradesh hailed the proposition with enthusiasm.
The matter was again taken up by Sir Hari Singh Gour in the assembly in 1924. The select committee to which the bill was referred allowed the age to be raised to 14 in extra-marital cases but reduced it to 13 for marital consummation. However the government did not allow the Bill prepared by the select committee to go through; instead it presented a Bill in September 1925, fixing 14 as the age in extra-marital cases and 13 in marital cases. The House was not however satisfied, and Sir Hari Singh Gour again pleaded in 1927 for the Bill thrown out in 1924. An age consent committee, popularly known as the Joshi Committee was thereupon appointed to go into the matter in detail. The Committee recommended that the age be raised to 15 in marital cases. Consummation before 15 was to be known as ‘marital misbehaviour’ and the offender was to be punished. In extra-marital cases the age was to be raised to 18. In the case of sexual intercourse with a girl under 15, the offender was also to be punished with transportation or imprisonment for 10 years.
To prevent premature consummation the Committee further recommended that the marriage of a girl under 14 should be prohibited and penalized. In pursuance of this the Child Marriage Restraint Act was passed in 1929. The Act considers a male under 18 and the female under 14 as a child. Whoever being a male above 18 years and below 22 years, contracts child marriage was made punishable. In the same case whoever performs, conducts or directs any child marriage was made punishable. However, the defect of this Act is that it did not make child marriage a cognizable offence and no action can be taken by the government for its breach unless a complaint was made within one year of the solemnization of the marriage. There were also other defects that the Act could not be successfully implemented. Trying to furnish the inherent lacuna, the Act was subsequently amended in 1938. The amended Act says “the Court may, if satisfied from information laid before it through a complaint or otherwise that child marriage in contravention of this Act has been arranged or is about to be solemnized, issue an injunction against any of the persons……prohibiting such marriage” after previously giving notice to such person to appear in person or by pleader and to show cause against the issue of the injunction. Whoever disobeys such injunction was made to be punished.
The Government not satisfied with the various measures concerning marriages of the Hindus appointed a Joint Selection Committee (JSC) to prepare a report so as to codify and amend the various laws into one single Act. Thus the Hindu Marriage Act of 1955 was to serve this purpose. However, the Hindu Marriage Act 1955 which prescribed 18 and 15 years for boys and girls respectively, though passed in post-independence era, remain silent about the effect on the validity of the marria-ge and continues the earlier policy in cases of violation.
In 1978 the Government moved for the amendment of the Child Marriage Restraint Act (CMRA) of 1929. The Law Minister, Justice and Company affairs, Shri Shanti Bhushan, placed the Bill to amend the CMRA, 1929 and to make certain consequential amendments in the Indian Christian Marriage Act, 1872 and the Hindu Marriage Act, 1955. The CMRA, 1929, provided that a male who was under 18 years of age and a female under 14 years of age were not entitled to marry. After much deliberation in the Parliament, the Marriage Bill was finally passed.
Subsequently the Indian Christian Marriage Act, 1872, the Hindu Marriage Act, 1955, and the CMRA 1929, were thus amended stipulating 21 and 18 years as marriageable age for male and female respectively. However, despite the law, child marriage continued to take place. To ensure that child marriage is eradicated from within the society, the Government of India again enacted the “Prohibition of Child Marriage Act, 2006” replacing the earlier legislation of Child Marriage Restraint Act, 1929. This legislation is armed with enabling provisions to prohibit child marriages, protect and provide relief to victims and enhance punishment for those who abet, promote or solemnize such marriages. The Act also calls for appointment of Child Marriage Prohibition Officers for implementing the Act.
In my opinion there seems to be an allowance of the law as regard to Manipur. Our society boasts of the egalitarian structure where male and female are treated equally, but unbelievably this is a fairy tale. Quantitative data supporting my argument may not be available but in qualitative assessment of the subject brought forward through observational technique, I emphatically put down that rampant cases of child marriage is practised in Manipur. No protection officer or police are there to prevent solemnization of child marriage.
Different definitions of adulthood
From Damayanti Datta India Today, 2013
India Today
Age of Confusion
Who is an adult in India? There are at least five different definitions of who is an adult, and who is not, hidden in the nation's vast repertoire of over 30,000 Central and state laws.
Damayanti Datta India Today April 1, 2013
March 22, 2013 |
Defnition of Majority (as in adulthood)
When does a boy become a man? He can vote at age 18 but can't marry before age 21. No marriage, no fatherhood, right? No. The Majority Act of 1875 allows boys to adopt at 18. So when can a girl get married? At 18, under the Child Marriage Restraint Act of 1929. Yet, under the Hindu Marriage Act of 1955, a marriage is valid, once solemnised, even if a girl is under 15.
Who is an adult in India? There are at least five different definitions of who is an adult, and who is not, hidden in the nation's vast repertoire of over 30,000 Central and state laws. It's this fundamental contradiction that lies at the heart of the debate on age of consent (AOC)-the age below which 'consent' will not be a valid defence against a rape charge. It has split public opinion and divided legislators, sparking off a fierce debate from the streets to Parliament over the new anti-rape law.
Should it be 18 or 16? Hysteria has been the keystone of the controversy. Conservatives shrieked down the notion of 16 as the age at which young Indians can legally engage in sexual acts, although it has been India's AOC ever since the Indian Penal Code was amended in 1983 and many countries around the world have lower cut-offs than India. Liberals pitched for 16 and hammered home the effect a raised AOC would have on young India, given the changing social realities. The high-decibel drama came to an end on March 20, as Parliament set 18 as the age-limit under the Criminal Law (Amendment) Act, 2013. Going by it, sexually-curious under-18 boys can now be arrested, put in prison and even be charged with rape, if caught.
Is it biology, law, society or politics that decides the age of adulthood? "Age of consent, or a definite minimum age to engage in sexual activity, is how we measure adulthood," says jurist Ram Jethmalani
[In 1988], former Prime Minister Rajiv Gandhi had lowered the voting age from 21 to 18, he points out, and brought in 99 million voters to the electorate. "It's foolish to have so many laws without streamlining an accepted age of majority."
But AOC is a contested terrain globally. In the UK, AOC became a talking point in January with the government drawing up new laws on personal freedoms. "Across Europe, there have been calls for it to be lowered, as so many teenagers are sexually active at a younger age," says Ahin Choudhury, senior advocate with the Calcutta High Court. In 20 European nations, AOC is lower than 16, with the minimum of 13 in Spain. "These countries do not show any evidence that lower ages have led to more teen pregnancies, child abuse or sexual trafficking," he says.
History: The Phulmonee case of the 1890s
It was the marital rape and consequent death of an 11-year-old girl, Phulmonee, that first changed the minimum legal age for sexual intercourse in India from 10 to 12, way back in 1892. By 1949, with women agitating against the adverse effects of early pregnancy, the age was raised to 15. In 1983, amendments in the rape laws raised AOC to 16. "The problem started when the Government made 18 the cut-off in the Protection of Children from Sexual Offences Act, November 2012, without any discussion. Not even with those working on children," says Kavita Krishnan, national secretary of All India Progressive Women's Association. Although the Justice J.S. Verma Committee, in its report after the Delhi gang-rape case, mandated 16 as the cut-off, the Centre hurriedly introduced the rape ordinance fixing AOC at 18.
Courts, too, are raising a cautioning hand. "The legal system in our country cannot be used to punish youngsters in love," pointed out Delhi Judge [Ms.] Kamini Lau, in the case of State vs Krishan Rai Chaudhary, August 2012. Refusing to send an 18-year-old Delhi boy to jail for eloping with his girl-friend, she stated: "It is time for legislators to have a rethink¦ keeping in view the changing social attitudes and social sensibilities."
India Today annual sex surveys since 2009 show that one out of five teens claims to have had sex.
So you can't drive a car before 18 although you can roam around the streets on a 50 cc two-wheeler at 16. You cannot apply for your first independent passport before age 15 but are deemed fit to work after completing age 14 in most states across India. Your guardians will have the right to take your decisions till you are 18 but if guardians are appointed by courts then you can be an adult only at 21. You cannot be convicted of any offence if you are below 12, given adult punishment for murder if under 18 or convicted of an offence punishable with death or life imprisonment if under 21.
Indian Penal Code vs Child Marriage Act vs Child Trafficking Act
Union home minister Sushilkumar Shinde on Mar 26, 2013 cited the IPC of 1860 to defend his proposal for lowering the consent age for sex to 16 years, days after the anti-rape Bill passed by Parliament retained the age at 18.[[1]]
"The consent age of 16 years was incorporated in IPC (Indian Penal Code) in 1860. However, the minister, while making this assertion, did not mention about Child Marriage Act, which came into force in 2007, and Child Trafficking Act under which the definition of child has been fixed below 18 years.
Consensual sex with minor
Under the Protection of Children from Sexual Offences (POCSO) Act
Consensual sex with minor not crime, Delhi court says
TNN | Aug 26, 2013
Consensual sex with minor not crime, Delhi court says
The court made these observations while acquitting a 22-year-old youth of charges of kidnapping and raping a 15-year-old girl whom he later married.
NEW DELHI: A city court has observed that consensual sex with a girl aged below 18 years does not constitute an offence under the Protection of Children from Sexual Offences (POCSO) Act.
The court said the provisions of POCSO Act suggest that where a physical relationship — which is not in the nature of an assault — takes place with the minor girl's consent and where the consent has not been obtained unlawfully, no offence can be said to have been committed.
Rejecting the plea of the police and Delhi Commission for Women that POCSO Act prohibits minors from having any kind sexual relationship, additional sessions judge Dharmesh Sharma said, "I am afraid if that interpretation is allowed, it would mean that the human body of every individual under 18 years is the property of the state and no individual below 18 years can be allowed to have pleasures associated with one's body."
ASJ Sharma, however, urged state authorities to spread awareness related to unsafe sex or early marriage. "But there lies a greater responsibility on all of us, the state including police in spreading and creating public awareness about the impact of girl or boy marrying at a tender age or indulging in unsafe sexual activities," he said.
The court made these observations while acquitting a 22-year-old youth of charges of kidnapping and raping a 15-year-old girl whom he later married. The youth, a native of West Bengal, was acquitted of the charges as the court held that the minor, on her own will, accompanied him and obstacles should not be put in their happy married life.
"As the evidence indicates, they got married voluntarily with their free consent. Hence no case is made out under section 363 (kidnapping) and 366 (kidnapping or inducing woman to compel her marriage) of the IPC," the court said.
"In my opinion, it would neither serve the object of present enactment (POCSO Act) nor the purpose of criminal laws to hold the accused guilty on the ground that he had sexual intercourse with the girl below 18 years," the judge said, adding that it would not be good for the girl if her husband was sent to jail. The POCSO Act treats girls and boys below 18 years of age as minors.
"It is high time that state authorities, its machinery, NGOs and women groups made a determined and sustained endeavour to reach out to all in schools, colleges and residential places, thereby creating public awareness on various aspects of life in case of marriage at a tender age... besides creating awareness amongst adolescents and young adults about the serious psychological and physical health issues that such a relation entails," the court observed.
According to the prosecution, a complaint was filed before the police on March 5 by the minor girl's mother about her daughter going missing since February 26.
The accused was arrested on March 6 and the girl was also recovered from his custody, it said. The girl, in her statement recorded before a magistrate, said she had willingly gone with the accused to his native place in Kolkata and they got married in a temple there and since then they have been living together.
During the trial, the youth told the court that the girl had accompanied him to Kolkata on her own and they got married there but he denied having physical relations with her. The court also noted that the marriage was accepted by the girl's mother.
Under Mohammedan Law
Rape case: Delhi court frees man, cites Muslim law PTI | Aug 6, 2013
NEW DELHI: A Muslim man has been absolved of charges of illegally confining and raping a minor from the same religion, whom he had married later by a Delhi court. The court cited the Mahomedan Law that allows a 15-year-old girl to marry against the wishes of her parents.
The accused was charged with rape and illegal confinement under the IPC.
The IPC treats a girl as minor, in relation to the offence of rape, till she attains the age of 16 years and establishing physical relations with her, even with her consent, is an offence entailing life term as maximum sentence.
Judicial rulings
Consensual sex with girl below 16 is rape: Punjab and Haryana HC
The Times of India, April 9, 2016
Ajay Sura
In a verdict with wide ramifications, especially where the accused in rape cases are seeking leniency on the grounds that the intercourse was consensual, the Punjab and Haryana high court has made it clear that if the girl is below 16 years of age, the other partner in the sexual act is a criminal.
"A minor girl can be lured into giving consent for such an act without understanding the implications. Such consent, therefore, is treated as not an informed consent given after understanding the pros and cons as well as consequences of the intended action. Therefore, as a necessary corollary, duty is cast upon other person of not taking advantage of the so-called consent given by a girl who is less than 16 years of age," observed Justice Anita Chaudhary.
Justice Chaudhary passed these orders on March 30 while dismissing an appeal filed by a man from Gurgaon district against his conviction for raping a minor girl. The accused in the case was emphasizing that his conviction should be set aside because the sexual relations with the victim were consensual.
Dismissing his plea, the court made it clear that if the girl is below 16 years, the other partner in the sexual act has to be treated as a criminal. The law left no choice to him and he couldn't plead that the act was consensual, the court observed. Accused had kidnapped the victim, who was around 15 years of age on January 22, 2010. The father of the victim, who filed a complaint before the police, was not aware of the person who was involved. The girl was recovered later, and then it appeared that the accused was a mason and was working in the house of the complainant. He was already married and had two children.
He was tried before the district court Gurgaon, which on October 10, 2010, hold him guilty for rape and kidnapping of a minor girl and sentenced to 10 years imprisonment. Aggrieved by the sentence, the convict had filed appeal before the Punjab and Haryana high court.
His main argument was that the girl had stayed with him, and it was a case of consensual sexual relationship, thus, the court should be lenient to him and he should be released. Rejecting his appeal, the HC held that a minor is incapable of thinking rationally and whether it is civil law or criminal law, the consent of a minor is not treated as valid.
Consensual sex with minor wife
2017: Can use child rape law in teen marriages: SC
Marriage is not an exemption under the law to protect children from sexual offences even though marital rape is not recognised as a crime and the Indian Penal Code (IPC) protects any man having sexual intercourse with his minor wife above 15 years of age, the Supreme Court said. The court's observations came in a case in which an NGO challenged the exception for sex in marriages where the wife is between 15 and 18 years of age.
The provision that sex in a marriage where the wife is not less than 15 is not rape has been defended by successive governments on the plea that this reflects a social reality. The NGO Independent Thought has argued that the husband should be prosecuted under the Protection of Children from Sexual Offences (POCSO) Act.
A bench of Justices Madan B Lokur and Deepak Gupta, examining the validity of the provision that “sexual acts by a man with his own wife, not being under 15 years of age, is not rape“, said cases of a minor wife could well be dealt with under the POCSO law and proceedings could be initiated against the husband.
While the number of marriages where the wife is between 15 and 18 years -the latter being the legal age for matrimony for girls -is reducing, it still constitutes a significant number.
The national family health survey of 2015-16 shows that the percentage of women in the 20-24 age group who married before they turned 18 has declined in states like Bihar, Goa, Haryana, Karnataka, Madhya Pradesh, Tamil Nadu, Uttarakhand and West Bengal from 2005-06. Apart from the issue of minor brides, the demand that marital rape be made an offence is also being heard in the Delhi high court.
The court was hearing a PIL filed by Independent Thought seeking direction for fixing the age of consent of a wife at 18 years for having sex with her husband instead of 15 as of now. It challenged the constitutional validity of the amendment to Section 375 (rape) of the IPC, which makes an exception on age of consent of the wife for sex.
Advocate Gaurav Agrawal, appearing for the petitioner, told the bench that POCSO was a special act meant to protect the rights of kids and it would override the provision of the Indian Penal Code that provided an exception in case of child marriages. Referring to Section 42A of POCSO, he said that the exception under the IPC would not apply in those cases. Section 42A says: “The provisions of this act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency , the provisions of this act shall have overriding effect on the provisions of any such law to the extent of its inconsistency .“
The Centre, in its submission, justified the exception saying that marriage was sacrosanct and a social institution and it had to be protected, particularly when child marriage was a reality in the country . Despite prohibitory laws, child marriages are still prevalent and there are around 2.3 crore minor brides in the country .The Centre told the apex court that 899 cases of child marriage were registered in the last three years and 136 people convicted in those cases.
Centre’s submission to the SC
AmitAnand Choudhary | Child marriages caught in rape bind |Sep 06 2017 : The Times of India (Delhi)
The Centre told the Supreme Court on Sep 05 2017 that sexual intercourse with a minor wife could not be criminalised in view of the prevalence of child marriages in India, and justified the legal protection given to husbands under an IPC Section that says “sexual acts by a man with his own wife, not being under 15 years of age, are not rape“.
The Centre contended before a bench of Justice Madan B Lokur and Justice Deepak Gupta that child marriage was a social reality , and exception 2 in Section 375 of the IPC was consciously retained by Parliament to protect the sanctity of such marriages. It said declaring the exception unconstitutional would lead to criminal cases, and destroy the marital lives of girls wedded before turning 18.
The hearing saw the bench express concern for child brides. “We cannot be unmindful of the reality that lakhs of children are getting married in the co untry . Our order must be practical enough to be implementable,“ the bench said.
Section 375 says sexual intercourse without consent with a girl aged below 18 is rape, but exception 2 excludes from the definition sexual intercourse or acts with one's wife if she is over 15. Challenging the provision, NGO Independent Thought sought the SC's direction to fix the age of sexual consent at 18 years for wives as well, and quash the exception, which was carved out to protect the rights of children forced into marriage by their parents.
Countering the NGO's arguments, senior advocate Rana Mukherjee, appearing for the Centre, urged the court not to venture into the area as it was Parliament's domain. He said Parliament was conscious of its social obligations and international conventions on child rights, and had decided to retain the provision after examining all aspects. He said the court was virtually hearing a plea to recognise marital rape, which had been rejected by Parliament.
The court, however, clarified that the matter before it was not on the larger issue of marital rape and was confined to validity of exception 2.It also said validity of child marriage was not related with the exception, as a minor girl might like to stay married but not be forced into sexual intercourse. The bench also questioned the Centre on the logic behind keeping different age limits for marriage of girls under the IPC, the Prohibition of Child Marriage Act its different, and the Hindu Marriage Act.
2017, Oct: Sex with minor wife to be considered rape: SC
HIGHLIGHTS
- Before today's SC ruling, there was an exception in Section 375 rape law provisions that protected a man who had sexual relations with his wife even if she was under 18
- In Sept 2017, the SC asked the Centre how Parliament could create an exception in a law when the age of consent is 18
'Sex with minor wife is to be considered rape', says Supreme Court
NEW DELHI: In a landmark verdict, the Supreme Court (SC) on Wednesday ruled that sex with a wife who is under 18 years of age is rape and therefore a crime.
The top court did not rule on 'marital rape', which is sexual intercourse forced upon a spouse no matter what their age.
Before today's SC ruling, there was an exception in Section 375 rape law provisions that protected a man who had sexual relations with his wife even if she was under 18, which is the age of consent.
"Exception 2 in Section 375 of IPC (Indian Penal Code) granting protection to husband is violative of constitution and fundamental rights of minor bride', says Supreme Court.
The SC rejected the plea of the Centre which justified the provision on the grounds that child marriage is a reality in the country and such marriage has to be protected.
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.
Also in September, the apex court had said it did not want to go into the aspect of marital rape, but when the age of consent was 18 years for "all purposes", why was such an exception made in the IPC.
Responding to the query, the Centre's counsel had said if this exception under the IPC goes, then it would open up the arena of marital rape+ which does not exist in India.
"Economic and educational development in the country is still uneven and child marriages are still taking place. It has been therefore decided to retain the age of 15 years under Exception 2 so as to give protection to husband and wife against criminalising the sexual activity between them. It is also estimated that there are 23 million child brides in the country. Hence, criminalising the consummation of a marriage with such a serious offence such as rape would not be appropriate and practical," the Centre had said.
As per the National Family Health Survey, 46 per cent of women between the ages of 18-29 years were married before the age of 18.
Alternative proposals
‘Bring down age of consent to 16 years:’ Govt panel, 2015
NEW DELHI: A government-appointed panel has recommended that age of consensual sex be revised from 18 years to 16 years. It has also suggested that there should be a 'close-in-age' exception for young people in consensual sexual relationships when the two are above the age of 16 years.
At present the age of consent in India is 18 years with both the Protection of Children Against Sexual Offences (POCSO) and the Criminal Law Amendment Act (anti-rape law) recognizing persons below 18 years as minor.
The recommendation is part of the "high level committee on status of women 2015" that recently submitted its report to the women and child development (WCD) ministry, headed by Maneka Gandhi. The controversial recommendation along with other suggestions in the report will be debated with significant stakeholders including ministries of home, law, health among others in a meeting on July 20.
The proposal is likely to be supported by women and child rights activists who believe that raising the age bar of consensual sex has led to criminalizing of sexual behaviour among the young. They also believe that it has led to a growing number of false cases in police stations and courts where girls' parents have dragged young boys over a consensual relationship.
The amendment raising the age of consent from 16 to 18 years came after public uproar in the aftermath of the Nirbhaya gang-rape. The move had led to a major controversy with the Congress-led UPA split over the issue. The argument behind raising the age was to bring parity to the age of minor among various criminal laws and also prevent trafficking of young girls for labour and sex trade.
The pre-Oct 2017 legal position in a nutshell
India’s age of consent for heterosexual sex has traditionally been 16 years except in Manipur, where it is 14. If the partners are married then a lower age of consent applies (13 in Manipur and, traditionally, 15 in the rest of India).(The Brothers Network, Zedenrecht)
In 2013, the age of consent was raised to 18 in the IPC, for the rest of India (excluding Manipur). However, if married the age remained 15. (See the top screenshot.)
However, in Oct 2017, the SC held that sex with a minor wife would be considered rape:
The view of senior Indian lawyers
Before the SC verdict of Oct 2017:
A youth asked kaanoon.com ‘If anyone [has a] live-in relation[ship] with below 18 year girl..is that a crime? If both interested and like to each other to [have a] live-in relation?’ (Essentially, he wanted to know if having a live-in relationship with a girl who was younger than 18 years of age was a crime.)
All the lawyers on kaanoon.com opined that it was.
‘Having a live in with a girl who has not attained the necessary age is a crime. It amounts to rape,’ writes Ashish Davessar, Advocate, Jaipur
‘If you are in live in relationship [with a girl] below 18 years and even if consented for sex then also amounted to rape,’ adds Pradeep Bharathipura, Advocate, Bangalore
‘Don’t have any live in relationship with girl if she has not yet completed 18 years of age . you may unnecessarily land up in huge legal mess . as pointed out by experts even if it is consensual sex it amounts to rape,’ advises Ajay Sethi, Advocate, Mumbai
‘Do not have live in relationship with a minor girl even though it is consensual otherwise it amounts to rape and you will land yourself in trouble,’ Shashidhar S. Sastry, Advocate, Bangalore, reiterates.
‘Any relation with minor amount to rape if she goes against you. Age of majority is 18 years,’ Rajeev Bari, Advocate, New Delhi, warns.
What does the Indian Penal Code say?
If the above is confusing the best would be to refer to the IPC itself. And the confusion has arisen because the government's own websites have unamended, pre- 2013 versions of the IPC.
The following was stated in the Indian Penal Code on the government website NCW.nic.in in Jan 2016
375. Rape.--A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six follow ing descriptions:- …
Sixthly.-With or without her consent, when she is under sixteen years of age.
Exception.-Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. (This exception was withdrawn by the SC in Oct 2017.)
This is the same as what The Brothers Network and Zedenrecht had written.
However, as mentioned above, this was amended in 2013 and the amended version can be seen in the second screenshot.
Manipur
Why Manipur had a lower AoC: till 2012
Even as the country debates on how the age of consent for legal marriage is lower, we look at how Manipur happened to have a peculiar situation in this case.
What is the historical context? From pre-colonial to post-colonial
Manipur’s diverse society comprising the three dominant tribes of Meiteis, Nagas, Kukis and several others had led to this peculiar legal pluralism before the British ruled the country. Even during the Raj, tribal customary laws prevailed in Manipur.
Among the tribes, Meiteis were the superior one, socially and economically, and their customary laws were, therefore, followed statewide. With the passage of time, the laws frequently governed criminal proceedings as well.
A 2008 report of the Human Rights Watch, titled “These Fellows Should Be Eliminated”, quoted Satkhojal Chongloi of the Kuki Movement for Human Rights: “There are many different groups in Manipur. Some want a separate state under the Indian Constitution. Others demand a sovereign nation. But the main concern of the Kuki people is that the customary law should be protected.”
The internal legal system of the state and the tribes did not change with the changing political atmosphere of the country with the Centre also choosing not to interfere with the customary laws until 1949.
Although by way of the Merger Agreement, 1949, the state of Manipur gave up the monarch to India but the tradition of Oath and Ordeal maintained a legal position in the Meitei society as well as with the tribals. Under the State Merger Order, 1950 and the Manipur (Courts) Act, 1953, the state adopted the central laws i.e. the Criminal Procedure Code, Indian Penal Code and the Indian Evidence Act and these were applicable on villages and tribal people.
But the prevalent customary laws in Manipur remain protected and maintained by the Manipur (Village Authorities in Hill Areas) Act 1956. Even though the 1956 Act clearly states that offences falling under the IPC shall not be tried by the village courts, the village council and the village authority continue to co-exist in the villages.
One of the other reasons for legal pluralism in the state is that Meitei customary laws owe their inspiration to Hinduism and British colonialism and wiping out mainstream Meitei tradition was never considered plausible.
Following the Meitei customary law, the valley had a Meitei court where in the name of God, the traditional ‘Oath and Ordeal’ was practiced during legal proceedings. Swearing an oath to not commit a crime in the name of God held a high value back in the time. Where an oath placed its premise on the oral affirmation of the criminal, an ordeal was a means to judge the innocence of the criminal by forcing him to perform certain physical acts.
For instance, ordeal by fire was when the accused was instructed to carry a heated iron rod and walk a few paces. The innocence of the accused was proven if the wound from the hot iron had healed. Similarly, ordeal by water was implemented to judge the innocence of the accused by pushing a person into the water. If the man drowned, he in fact did commit a crime, and if he floated, he was proved to be innocent.
How did a low age of consent come about?
Due to unavailability of text on the issue, the reason for affixing the clause with Exception under Section 375 remains unknown, so does the reason for its scrapping.
According to Binalakshmi Nepram, Founder of Manipur Women Gun Survivors Network and CAFI and Convener of Northeast India Women Initiative for Peace, no treatise exists stating the low age of consent from the past.
Interacting with Indianexpress.com, Binalakshmi held customary laws to be one of the causes for the explicit low age of consent stated in the central law. Speaking about child marriage in the Manipuri society, Binalakshmi said marriage finds its roots in the “deeply patriarchal” customary system called “Nupi Chingba” (abduction of a young girl) or “Nupi Chenba” (elopement). In some cases the elopement is mutual, however, in other instances “many others tragically “allow” a minor young girl to be abducted, raped and then married off as she is no longer “pure”.”
Well-versed on Manipur customary laws, Dr Vijaylakshmi Brara, PhD in Sociology and Associate Professor at Manipur University, Canchipur said the innumerable customary laws of Manipur do not mention the legal age of marriage.
The position in Manipur in 2012
The Protection of Children from Sexual Offences Act, 2012 (in short, “the Act”) is an act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.
While passing the Act, the Central Legislature has kept in mind the rising crime and commercial exploitation of children under the age of 18 years and to provide proper development of the child that his or her right to privacy and confidentiality be protected and respected by every person by all means and through all stages of a judicial process involving the child and to make the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child.
A child has been defined in the Act in section 2(1)(d) as:- “child” means any person below the age of eighteen years. By this definition, the consent of the minor (who is below the age of 18 years) who is involved in sexual activity has been done away. Hence, anybody who is involved in sexual activity with a minor can be prosecuted under this Act even when the sexual activity had taken place with his/her consent.
In the Indian Penal Code (in short, “IPC”), kidnapping and rape has been defined as:-
“361. Kidnapping from lawful guardianship.- Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
State Amendment-[Manipur].- In section 361, for the words “eighteen”, substitute “fifteen”.- Manipur Act 30 of 1950, section 3.
Rape.- A man is said to commit “rape’ who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
First.- Against her will.
Secondly.- Without her consent.
…………
…………
Sixthly.- With or without her consent, when she is under sixteen years of age.
Exception.- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
State Amendment-[Manipur].- In section 375.-
a) in clause Sixthly, for the words “sixteen”, substitute “fourteen”; and
b) in the Exception, for the words “fifteen”, substitute “thirteen”;.- Manipur Act 30 of 1950, section 4.
The then Legislatures of Manipur had taken care of certain sections of the Indian Penal Code by taking into consideration the prevailing culture and customary practice prevalent in the state of Manipur in order to implement the Indian Penal Code smoothly.
It is pertinent to state that as per the culture and customary practice prevalent in the state of Manipur since many centuries, elopement of a boy and a girl is prevalent with their consent in order to get married and there is also a belief that if a boy and a girl elope then any uncertain/unknown eventuality is also thwarted by the said act of elopement.
In the Act, penetrative sexual assault has been defined in section 3 as:-
Penetrative sexual assault.- A person is said to commit “penetrative sexual assault” if-
he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child do so with him or any other person.
The punishment for the said penetrative sexual assault is with imprisonment which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine. Further in section 42A of the Act it has been stated that the Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency.
The extension of the POCSO Act, 2012 as passed by the Central Legislature in the Parliament without any amendment in the state of Manipur has created a problem to the implementing agencies, i.e. the police and the judiciary. Looking into the number of cases that has been registered in the Imphal East and Imphal West for the year 2014 and 2015, it is found that about 90 cases had been registered invoking the Act, out of which about 65 cases turns out to be cases of elopement, however, as the parents of the minor girl does not want to give their daughter’s hand into marriage with the said lover boy of the girl, they are being booked under the said Act. Thus, with the advent of the Act, a lover boy who had eloped with his love ones as per customary practice had to undergo imprisonment if the girl happens to be a minor, because the parents of the girl does not want the boy to be their son-in-law.
See also
Age of consent in India
