The Union government wanted the Indian Penal Code Section that allowed a man to have sex with his wife aged below 15 to stay.
The Section was read down by the Supreme Court on Wednesday.
There were deliberations on striking down exception 2 to Section 375 (rape) of the IPC in the Ministry of Home Affairs (MHA) and the Women and Child Development (WCD) Ministry after an NGO Bachpan Bachao Andolan (BBA) moved the court.
The NGO, run by Nobel Prize winner Kailash Satyarthi, wanted the Supreme Court to examine the conflict of Section 375 IPC with Protection of Children from Sexual Offences (POCSO) Act, 2012 as the latter specifies that sexual intercourse with children aged below 18 amounted to rape.
In its response to the WCD Ministry, the nodal Ministry for such subjects, the MHA said, “marriage of minors is an old custom in India, practised by all social groups, however, the MHA will abide by the Supreme Court directions.”
On Wednesday, a Bench of Justices Madan B. Lokur and Deepak Gupta read down the Section while hearing a similar petition filed by NGO Independent Thought, which challenged the exception, on how when sexual intercourse with a minor aged below 18 with or without her consent amounts to rape under the IPC, it is not so once she is married.
The Home Ministry, under the United Progressive Alliance (UPA) government, in February 2014 filed a counter affidavit against striking down the provision. The National Democratic Alliance government adopted the UPA’s affidavit and supported the IPC provision.
The affidavit said, “It is true that the minimum age of marriage of a female is 18 years and punishment has been provided in the Prohibition of Child Marriage Act, 2006 to discourage child marriages. However, it is also a fact that a large section of the Indian society, which is living in rural areas, continues to follow such practices as part of their tradition. As per the data collected in National Family Health Survey-III, 46% of women between 18-29 years in India were married before the age of 18. It is also estimated that there are 23 million child brides in the country. Hence criminalising the consummation of a marriage union with a serious offence such as rape would not be appropriate and practical.”
A study of the 2011 Census by Young Lives, in coordination with the National Commission for Protection of Child Rights, has revealed that Rajasthan has the highest incidence of child marriages.
The study stated that 2.5 % of the girls in Rajasthan got married before the legal age of 18. Rajasthan also topped in the percentage (4.69%) of the boys in the State marrying below the legal age of 21 years.
Thirteen other States, including Meghalaya, Arunachal Pradesh, Bihar, Uttar Pradesh, Gujarat, Madhya Pradesh, West Bengal, Maharashtra and Karnataka, reported higher percentage of child marriages among boys than the national average.
The study highlighted 70 districts as child marriage “hotspots” spread across 13 States, which comprise more than 20 % of the child marriage. According to the 2011 census, 69.5 lakh boys and 51.6 lakh girls were married before their respective legal age.