Can sex with wife, who is above 15 and below 18 years of age, be termed as sexual assault under the Protection of Children from Sexual Offences Act in the event of glaring inconsistency with IPC which does not hold it as rape, the Supreme Court on Thursday posed this question to the Centre.
Section 375 (rape) of IPC has an exception clause which says "sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."
Section 5 (n) of POCSO says that sexual intercourse with a child below 18 years is an "aggravated penetrative sexual assault" inviting penal consequences.
A bench headed by Chief Justice J S Khehar considered the inconsistency highlighted by Nobel Laureate Kailash Satyarthi through his NGO Bachpan Bachao Andolan and asked the Centre to consider their representation and file its response in four months.
The bench also comprising Justices N V Ramana and D Y Chandrachud asked the Ministry of Women and Child Development to consider the representation of the NGO, examine it and file the detailed report on the issue.
"If you are still unhappy with the response, you are at liberty to approach the court," the bench said.
Section 6 of POCSO Act provides punishment of rigorous imprisonment not less than 10 years to life imprisonment for aggravated penetrative sexual assault on a child below 18 years of age.
The PIL filed by advocates Bhuwan Ribhu and Jagjit Singh Chabra said that court should pass order declaring that the provisions of POCSO shall be mandatorily enforced and applied in all cases of sexual assault upon children, below the age of 18, regardless of their marital status.
The petition has said that "in a large number of cases that despite being a child by definition (under the age of 18), provisions of POCSO are not being applied and the benefit of a special act is not being afforded to those children, who by definition fall under POCSO, but who are in a married relationship".
Satyarthi's NGO said that the provisions makes it clear that where a child is below the age of 18, even if she is a wife and is subjected to sexual intercourse by her husband, the provisions of POCSO will apply, and the same will constitute aggravated penetrative sexual assault.
"In a large number of cases, the petitioner has observed that despite being a child by definition (under the age of 18), provisions of POCSO are not being applied and the benefit of a special act is not being afforded to children where they are in married relationship but over the age of fifteen.
"Therefore, a child's status as a child till she attains the age of 18, otherwise guaranteed by the state, is denied to her once she is forcefully or otherwise wed," the plea said.
The NGO also sought rehabilitation of under the provisions of the Juvenile Justice (Care and Protection of Children) Act whose marriage has been declared void/voidable under the provisions of the Prohibition of Child Marriage Act.
It also sought a direction to the Centre to formulate a national action plan with detailed roles, responsibilities and accountability of the various government departments to ensure the protection of the girl child from the menace of child marriage.
