Harmonizing of Laws in Light of Child Sexual Abuse
The POCSO Act and Section 375 Exception of IPC was a dissonant duality before October 11, 2017. A landmark judgment in Supreme Court criminalized sex with a minor wife aged between 15-18 years. Till now sexual intercourse with a minor wife did not amount to rape if she was over 15 years of age, as per Exception 2 in Indian Penal Code Section 375 (Laws regarding Rape). It was a retrogressive provision of exception which elucidated that rape of a minor by the husband was not a crime, even though child marriage is illegal. Such a provision came into direct conflict with The Protection of Children from Sexual Offences, 2012.
There is no real difference between the definition of “penetrative sexual assault’’ in terms of Section 3 of the POCSO Act and “Rape” in terms of Section 375 of the IPC except that Rape is not elaborately defined. The punishment for the “Rape” and “penetrative sexual assault” is also the same. By Section 42 A of POCSO Act, the provisions of this Act re in addition to and not in derogation of ‘any other law for the time being in force’ and in case of any inconsistency, the provisions of this Act shall have an overriding effect on the provisions of any such law to the extent of the inconsistency. Marital rape of a girl child is effectively nothing but aggravated penetrative sexual assault and there is no reason why it should not be punishable under the provisions of the IPC. There is no rationale for this distinction and it is nothing but a completely arbitrary and discriminatory distinction.
Legislative action was initiated in order to eradicate this ignorant contradiction of laws. As reported by The Hindu on January 5, 2017, “A chink in the colonial-era Indian Penal Code (IPC), allowing a man to have sexual intercourse with his child-wife, has led the Supreme Court to give a directive to the Central government.
Nobel prize winner Kailash Satyarthi, through his organization, Bachpan Bachao Andolan, appealed to the Supreme Court on Thursday for help to end this “statutorily backed” crime against children. In a petition before a Bench led by Chief Justice of India J.S. Khehar, the organization highlighted the conflict between the IPC and the POCSO Act.”
In the case of Independent Thought v. Union of India (2017 SCC OnLine SC 1222), the Court held that Exception 2 to Section 375 IPC was arbitrary and violative of bodily integrity of a girl child. It was capricious, whimsical, and violative of Article 14, 15, and 21 of the Constitution of India. Therefore, such an unconstitutional feature was struck off.