Supreme Court: Hearing the plea questioning the validity of a provision permitting a man to have physical relationship with his wife, even if she was aged between 15 and 18 years, the bench of Madan B. Lokur and Deepak Gupta, JJ expressed dismay over the prevalence of the practice of child marriage despite the existence of the Child Marriage Prohibition Act and said
“It is a hard reality and is unfortunate that most of the child marriages happening in the country are done by parents of the girl child. However, to this, there are odd exceptions when a minor boy and girl fall in love and marry on their own.”
Advocate Gaurav Agarwal, appearing for NGO Independent Thought, brought to the Court’s notice that by the Criminal Law (Amendment) Act, 2013, the age of consent for sexual intercourse by a girl, which was earlier 16 years has now been increased to 18 years, however, exception 2 to section 375 of the IPC still retains the age of consent as 15 years, due to which there is a huge gap of three years in the age of consent for a married girl child and an unmarried girl. He added that if the object behind increasing the age of consent to 18 years in 2013, was that a girl below that age is incapable of realising the consequences of her consent, then marriage of girl between the age of 15-17 years does not make the girl mature enough, mentally or physically, for the purpose of consent.
Taking note of the argument, the Court sought to know whether it can create an offence by striking down the exception 2 of section 375 of IPC which the Parliament has refused to do. It also showed concern over the fate of the children born from such marriages if the provision was struck down.
The Centre, on the other hand, had contended that child marriage were still happening in the country due to uneven economic and educational development and it has been, therefore, decided to retain the age of 15 years under exception 2 of section 375 of IPC, so as to give protection to husband and wife against criminalising the sexual activity between them.
The next date of hearing on the matter is 05.09.2017.