Mobilenews25x7Bureau (Exclusive)
Has it been a peculiar mix-up and one can leave on that the debate to the experts. But the recent decision taken in Assam by clubbing up POCSO and the IPC has a few confusions. To address social concerns, is one of the biggest problems of our legal system
Faceoff
It may be recalled that the text of section 375 of the Indian Penal Code, 1860 [IPC] provides a marital rape exception according to which sexual intercourse by a man with his wife, if the wife if above 15 years, is not considered rape. This provision was earlier in contradiction with the POCSO, since the latter penalizes any form of sexual intercourse with an individual below the age of 18.
Even the SC had held “that the distinction between married and unmarried girl child under the relevant provision, is a violation of Articles 14, 15(3) and 21 of the Constitution of India, as it is arbitrary and is not based on intelligible differentia”.
The Court also relied on section 42A of POCSO, which was introduced in 2013 through an amendment. This section clarifies that in case of any conflict between any other law and POCSO, the latter will prevaile.
Where lies the conflict?
Consequently, the Court has read down the exception and held that sexual intercourse of a man with his wife, if the wife is below18 years of age would constitute rape under section 375 of the IPC.
While the conflict between POCSO and IPC has been resolved through legislative amendment and judicial decision, there is still legal ambiguity with regard to the conflict between Muslim Personal Law and the POCSO.
The Assam government has stated that the state will take action against child marriage irrespective of caste, creed or religion.
Assam government very recently declared that, punitive action may be taken against child marriage. The two legislations that are being used by the Assam government to validate these actions are the Protection of Children from Sexual Offences Act, 2012 [POCSO] and the Prohibition of Child Marriage Act, 2006 [POCM].
POCSO defines child as any person below the age of 18 years.This is in consonance with the Indian Majority Act, 1875 as well as the definition of child under the United Nations Convention on the Rights of the Child, 1989. Sections 3 and 5 of this of this act penalise sexual intercourse with a child.
This Act presumes that a child does not have sexual autonomy. Thus, under the POCSO, the spouse of a person below the age of 18 can be penalised. According to POCM, solemnisation of marriage of a girl below the age of 18 years and of a boy below the age of 21 years is prohibited. Currently, there is a proposal to increase the age of marriage of girls to 21 years.
Now the issue lies suspended in between the two. So the issue requires a fresh look into.
