Sex with underage wife is Crime, says SC! But isn’t having an underage wife a crime in itself?

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According to the Child Marriage Act – the acceptable age for marriage for a girl is 18 and 21 for a boy. But a man is allowed to have sex with his underage wife (whether she agrees to sex  or not) under Pocso (Protection of Children from Sexual Offences).  According to the law of country, IPC section  375 states, sex with a girl below the age of 18 is rape but if she is married and you have sex with her (consensual or non-consensual) it is not rape? What kind of a twisted society is this?


Is this making any sense at all? The ultimate fact is that you cannot marry a woman below 18; then where does the question of having sex with a woman below 18 comes from? The validation comes from marrying her but how can anyone marry a girl who is not yet 18 is another question? There is a law allowing sex with an underage person that is not just contrary to IPC 375 law but also validates rape?


child marriage 1The twist in the tale is that girls are categorized. One is that you cannot have sex with a girl who is not yet 18 years old. But you can if she is above 15 and is your wife. But marrying a person below 18 is criminal then why make categories that support crime? The second category that validates sex with a minor is known as IPC section 375 (2) which was challenged by Gaurav Agrawal – counsel for an NGO. He challenged that section 375 (2), stating that it encourages discrimination against women. His plea was that “why should a girl of same age suffer”?


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We cannot deny that India is perennially suffering with social demons and Child Marriage is still a widespread practice. But Supreme Court passed a landmark judgment yesterday on 11th Oct 2017. According to the new judgment, which also scrapped the older immoral law; sex between a man with his wife who is below 18 years of age will be counted as rape and the man can be sentenced to 10 years of jail in case he does have sex with her and the wife reports the same to police.


22According to the panel of judges, the decision has been taken to assure healthy growth of women. One of the judges stated that when a girl of 15-16 years of age is subjected to sex, it makes an irreversible impact on her mental and physical health which can leave her traumatized forever thus, the judgment was passed yesterday that made it crystal clear that sex with a girl below 18 is criminal regardless of her marital status.


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Health is just one factor. There shouldn’t have been a law that supports child marriage. It maybe is in rituals in many cultures in India but is it progressive? How does this ritual help anyone? It is like treating girls like herd who till certain age are tied to one pole and to another after a certain age. Children cannot determine whether they are ready to be married or not and once they are married, they will be intrigued about sex after a certain age. On one side where we are grappling with out of control population, we are encouraging more birth rate with immoral practices that are orthodox and backward in the vilest sense.


It is time that we reconsider the customs that we are following on the name of religion, practice, background and belief. Being able to distinguish the right from the wrong is something that law cannot teach however, law can enforce a system that not only demolishes the regressive beliefs and practices but also encourages a forward thinking mentality.


Bhavika Batra

The girl next door, exploring life and always on an adventure. Care to share your experience? If yes, let's get together to resolve this enigma called LIFE!

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