Parliament, in its wisdom, had taken a conscious decision to keep the age limit of voidable marriage between 15 and 18 years in case of girls, the government told the Supreme Court today.
It said the legislature kept in mind the socio-economic conditions of the country and was aware of the international conventions, while deciding to keep the voidable clause in case of child marriages.
A bench of Justices M B Lokur and Deepak Gupta questioned the Centre about the logic behind keeping different age limits of voidable marriage for girls under different laws.
"In Indian Penal Code its different, in Prohibition of Child Marriage Act its different, in Hindu Marriage Act its different. What is the logic keeping different age limits for the marriage of girls," the bench said.
It also questioned the government for giving a varying window of age in different laws to women married at an age below 18 years, to walk out of the marriage.
During the hearing, the apex court also expressed concern over the prevalence of child marriages in the country despite a specific law prohibiting it, saying "these are not marriage but mirages."
"These cases will not be reported even if we hold the exception to IPC as void. Hardly any women will come to court. If both man and woman are of the age of 19 years, then the marriage is voidable at the instance of the man. The question still is where can we go? We have to look every aspect," the bench observed.
Senior advocate Rana Mukherjee, appearing for Centre, said child marriage was abhorrent to the Prohibition of Child Marriage Act (PCMA), but it still happened.
"These marriages do happen in the society. Legitimacy of the child born from such marriage has to be given. Parliament was aware of voidable marriages happening in the society and therefore it had taken a conscious decision and kept the age limit of 15 to 18 years for marriage of girl," he said.
The court was hearing pleas questioning the validity of a provision permitting a man to have physical relationship with his wife, even if she was aged between 15 and 18 years.
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.
Centre's arguments remained inconclusive and will continue tomorrow.
Advocate Jayna Kothari, appearing for NGO Child Rights Trust, said the exception to section 375 of IPC is defeating the very purpose of PCMA and was also in violation of international conventions of which India is a signatory.
She said the right to privacy, as recognised by the Supreme Court in its recent decision, secured for every individual a private space free of intrusion and autonomy over most intimate, personal decisions.
"This is a concomitant ingredient of dignity which is so essential to development of human personality. Exempting sexual violence against minor girls from criminal prosecution within marriage, not only violates such right by depriving of their autonomy but also violates their fundamental right to life and bodily integrity," she said.
Kothari, assisted by advocate Disha Chaudhari, said the PCMA cannot be effectively implemented as the exception with regard to minor women legitimises violence against minor girls within marriage and hinders the provisions of the PCMA.
"Where on one hand it gives minor girls the option to nullify an early marriage, on the other it denies them any legal recourse for sexual abuse suffered within such voidable marriage," she said, adding that several high courts have repeatedly recognised that the PCMA overrides personal law.
Earlier, the bench had expressed dismay over the prevalence of the practice of child marriage despite the existence of the PCMA and termed as unfortunate that this was being done mostly at the behest of girl child's parents.
The Centre, in its affidavits, had admitted that child marriage were still happening in the country due to uneven economic and educational development.
"It has been therefore decided to retain the age of 15 years under exception 2 of section 375 of IPC, so as to give protection to husband and wife against criminalising the sexual activity between them," it had said.
It had said that lawmakers had taken a pragmatic view regarding the issue of 'marital rape' as marriage being a social institution was the bedrock of any society and hence, needs to be protected.
The NGO sought direction to declare exception 2 to Section 375 of the IPC as "violative of Articles 14, 15 and 21 of the Constitution to the extent that it permits intrusive sexual intercourse with a girl child aged between 15 and 18 years, only on the ground that she has been married."
It also referred to the provisions of the Protection of Children from Sexual Offences Act (POCSO), 2012, and said these were contrary to the IPC provision.
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