- Inconsistencies in laws dealing with offence of sexual assault of girl child today came to fore in the Supreme Court, which said there was a need to harmonise conflict in the laws to protect their human rights.
- Section 375 of the IPC, 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.
- However, the age of consent is 18 years.
- However, exception 2 to Section 375 of the IPC, says that if a girl child between 15 and 18 years of age is married, her husband can have non-consensual sexual intercourse with her, without being penalised under the IPC, only because she is married to him and for no other reason.
The POSCO Act:
- Similarly, the Protection of Children from Sexual Offences Act (POCSO Act) 2012 was formulated in order to effectively address sexual abuse and sexual exploitation of children.
- “There is an apparent conflict or incongruity between the provisions of the IPC and the POCSO Act.
- 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.
What the Court Said?
- The apex court said there should be harmonious construction of all pro-child laws — the Juvenile Justice Act, the Protection of Children from Sexual Offences Act (POCSO), the Prohibition of Child Marriage Act and the IPC to avoid any conflict among them while dealing with the issue of sexual intercourse involving a girl below the age of 18.
- Referring to the IPC and the POCSO Act, the apex court said there was a visible conflict between the two laws with regard to the sexual assault on girl child aged between 15 to 18 years.
- The top court said that different and irrational standards have been laid down for the treatment of the girl child by her husband and it is necessary to harmonise the provisions of various statutes.
- The court said there seems to be no reason to arbitrarily discriminate against a girl child who is married between 15 and 18 years of age and on the contrary, there is every reason to give a harmonious and purposive construction to the pro- child statutes to preserve and protect the human rights of the married girl child.
- Justice Deepak Gupta, who wrote a separate but concurring judgement, also pointed out the inconsistency between the two laws and said there was a major incongruity between POCSO and IPC.
Definition under POSCO
- “POCSO defines a child to be a person below the age of 18 years.
- Penetrative sexual assault and aggravated penetrative sexual assault have been defined in Section 3 and Section 5 of POCSO. Provisions of Section 3 and 5 are by and large similar to Section 375 and Section 376 of IPC.
- Section 3 of the POCSO is identical to the opening portion of Section 375 of IPC whereas Section 5 of POCSO is similar to Section 376(2) of the IPC.
- Exception 2 to Section 375 of IPC, which makes sexual intercourse or acts of consensual sex of a man with his own ‘wife’ not being under 15 years of age, not an offence, is not found in any provision of POCSO. Therefore, this is a major inconsistency between POCSO and IPC.
- When the State has laid down that abetting child marriage is a criminal offence, it cannot defend this classification of girls below 18 years on the ground of sanctity of marriage because such classification has no nexus with the object sought to be achieved.
- Therefore, also Exception 2 (to Section 375 IPC) in so far as it relates to girls below 18 years is discriminatory and violative of Article 14 of the Constitution.
The conflict or incongruity needs to be resolved in the best interest of the girl child and the provisions of various complementary statutes need to be harmonised and read purposively to present an articulate whole.