Child Marriage Act: Rights panels assail senators for rejecting amendment

The Supreme Court DH File

However, the judges refrained from making any observation with regard to the marital rape of a woman who is 18 years of age and above.

"There is an apparent conflict or incongruity between the provisions of the IPC and the P OCSO Act". The apex court has rightly rubbished the exceptions granted in the IPC provisions and categorically ruled that sex with a girl below 18 years of age is rape, regardless of her marital status.

Voicing their lack of appreciation for the justification offered by the government for retaining 15 as the age of consent under Exception 2 to Section 375, the same being child marriages being a common practice, the bench has held that under no circumstances can it be assumed that a girl child otherwise incapable of consenting to sexual acts can be said to have implied the same simply on account of being married.

The ruling overturns a provision in the penal code that allowed sex with a girl over 15 years-old if the couple was married.

Brinda Karat said that the SC ruling only considered a particular aspect of child marriage in which children are forcibly married off at a young age. The rape of a married girl child (between 15 and 18 years) is not rape under the IPC and therefore not an offence in view of Exception 2 to Section 375 thereof but it is an offence of aggravated penetrative sexual assault under Section 5 (n) of the POCSO Act and punishable under Section 6 of that Act.

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Although gender rights activists have welcomed the SC ruling saying that the recent ruling might reduce the increasing number of child marriages, TOI reported. "The artificial distinction is discriminatory and is definitely not in the interest of the girl child". A senior government functionary said here that the apex court order will help curb child marriages as it has created the needed "legal deterrent".

According to Girls Not Brides, an organization campaigning to end child marriage, Pakistan's National Assembly has rejected draft of the Child Marriage Restraint Act in the past, most recently in May this year.

The Prohibition of Child Marriage Act, 2006 is a secular law and must override all personal laws, all attempts being made to secure the objective the enactment aims to achieve.

A detailed coverage of the arguments and verdict in the said case is available here.

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