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Women's rights activists in the country hailed the ruling as a "positive step in the right direction" and a possible "deterrent for child marriages".agmati Sangwan, women's activist and member of the All India Democratic Women's Association (AIDWA), told Al Jazeera.Lawyers in marital rape case see glimmer of hope in Supreme Court order on sex with child wife “…In our opinion, sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not,” the court said adding: “The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved.The artificial distinction is discriminatory and is definitely not in the interest of the girl child.” It was also “contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in international conventions…and to the philosophy behind some statutes, the bodily integrity of the girl child and her reproductive choice,” the judgment said adding it was “dreadful” that it also “turns a blind eye to trafficking of the girl child..which is such a horrible social evil”.The Act, said Justice Gupta “has been breached with impunity”. In the case of a minor girl child, good health would mean her right to develop as a healthy woman.He added, “I think the time has come when this Act needs serious reconsideration, especially in view of the harsh reality that a lot of child trafficking is taking place under the garb of marriage including child marriage.” Stating that child marriages not only violated human rights, the judge said that it also affects the health of the child. This not only requires good physical health but also good mental health.The girl child must not be deprived of her right to study further…In the modern age, when we talk of gender equality, the girl child must be given equal opportunity to develop like a male child.

The bench, however, clarified that it was not making any observation on “marital rape” of a woman who is 18 years of age and above as the issue was not before the court.The court was hearing a petition by Delhi-based child rights NGO Independent Thought.The “only pragmatic opinion available” was “to read (this) exception to Section 375 of the IPC in a purposive manner to make it in consonance with the POCSO Act, the spirit of other pro-child legislations and the human rights of a married girl child”, Justice Lokur wrote in his judgement which ran into 70 pages.The decision applies to all faiths and is expected to act as a deterrent against child marriage, which, although prohibited under the law, is still prevalent in many parts of the country.Section 375 of the Indian Penal Code, which defines the offence of rape, has an exception clause that says intercourse or sexual act by a man with his wife, not below 15 years, is not rape. A bench of Justices Madan B Lokur and Deepak Gupta read down this exception arguing that it was inconsistent with other statutes dealing with children such as The Prohibition of Prevention of Child Marriage Act (PCMA), Juvenile Justice Act and The Protection of Children from Sexual Offences (POCSO) Act — all these have fixed the minimum age of the girl child for sexual relations at eighteen.




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