New Delhi: The Supreme Court is currently hearing challenges to the validity of a clause in the Indian legal definition of rape which excludes sexual intercourse by a man with a minor girl above the age of 15 if she happens to be his wife.

Most observers believe the court is unlikely to strike this exception down. The reason is not because the court disagrees with the petitioners’ argument that the exception violates constitutional provisions guaranteeing equality, which indeed, it does. It creates an unreasonable category – married minor girls – and denies them state protection from rape by their husbands merely on the ground of their marriage. So what explains the judicial resistance to striking down this clause?

Under the sixth definition of rape in Section 375 of the Indian Penal Code, a man is said to commit the crime if he indulges in specified sexual acts with a girl under 18 – with or without her consent. However, Exception 2 says sexual intercourse or sexual acts by a man with an underage girl will not be considered rape so long as the girl is his wife and is not under 15 years of age.

The petitioner before the Supreme Court, Independent Thought, an NGO, and the intervener, Child Rights Trust, have rightly asked how marriage of a girl aged between 15 and 18 can justify denying her a legal protection which is extended to girls of the same age group who are not married.

In other words, the very law which says that any girl aged between 15 and 18 is incapable of giving her consent for sexual intercourse somehow assumes that a girl of the same age group, if married, is capable of doing so. How is this possible, the petitioners ask.

While the Supreme Court bench of Justices Madan B. Lokur and Deepak Gupta, agrees with the petitioners on this, it has found the issue too complicated to be resolved easily. The bench asked counsel to clarify the consequences of declaring Exception 2 unconstitutional, implying that some of the fears may be unfounded. The bench itself pointed out that children born out of wedlock with minor girls would not become illegitimate merely because the exception goes.

Under Section 3 of the Prohibition of Child Marriage Act (PCMA), 2006, any person who was a child at the time of marriage can move to have it voided. A petition under this section must be filed by the girl child before she reaches the age of 20. Under the PCMA, a “child” means “a person who, if a male, has not completed 21 years of age, and if a female, has not completed 18 years of age.”

Since there is ample evidence to suggest that most child marriages do not get annulled under the Act, the Supreme Court is hesitant to strike down Exception 2 for fear that such a ruling may prove to be unimplementable.

Karnataka is the only state which amended the PCMA to declare a marriage solemnised between children as void ab initio or invalid in law. This amendment was introduced in April but early results show it has not yielded the desired results yet.

It is in this context that Justice Lokur came up with a novel proposal to the counsel during the hearings – to distinguish marriage from sexual intercourse. “Both are very different”, he told them. A minor girl child who has married may not want to take the trouble of filing an application for voiding it through her parents or guardian, or wait till she turns 18; but she could certainly say that she does not want to have sexual intercourse with her husband till she is 18, he emphasised. Does the state not have a duty to protect her from sexual intercourse, if not from marriage, he asked.

On September 5, Jayna Kothari, counsel for the NGO, Child Rights Trust, noted that according to 2016 UNICEF report India has the highest number of child brides – with 47% of girls being married before they attain the age of 18. Further, India ranks second highest in terms of the rates of child marriages in South Asia, with 75% of the girls married before the age of 18 belonging to the poorer section of society and a total of 48% of the women married before the age of 18 belonging to the rural areas.

According to the National Family Health Survey 2015-16, 26.8% of women in the age group of 20-24 were married before the age of 18. The survey has found that forced sexual encounters at the hands of older husbands have long-lasting adverse impacts on the psychological and emotional well-being of the girl and often result in post-traumatic stress disorder with young girls being at a greater risk of suffering marital rape. Furthermore, sexual relations – and the resultant teenage pregnancy – compromise the reproductive health of the girl child, exposing her to a higher risk of contracting sexually transmitted diseases and complications owing to lack of biological maturity leading to increased maternal mortality rates of girls between the ages of 15-19, Kothari told the bench.

In her submission, she stated that in Karnataka, during 2016-17, 58 child marriages were conducted, but only 22 complaints were filed with the police, under the PCMA. According to her, there is no explanation for why the child marriage prohibition officers, appointed under the Act, did not file complaints and take steps for prosecution in the remaining cases. She also noted that once married, minor girls are under extreme social and family pressure and cannot file complaints.

The Centre, which has begun its submissions in the case, will continue on Wednesday (September 6).

The Modi government is defending the child marriage exception to rape on the ground that it is traditional, even if abhorrent, and that parliament was conscious of the inconsistency between the the IPC and PCMA when it chose to retain the exception, while increasing the age of consent from 16 to 18 for girls in 2013.

Meanwhile, the Delhi high court, which has been hearing a bunch of petitions challenging marital rape in general, suspended its proceedings on Monday in view of the doubts expressed that the outcome of the Supreme Court’s hearing in the child marriage exception case might have a bearing on the case before it. The high court, after ascertaining the details of the petitions being heard by the Supreme Court, will decide whether to continue its hearing in the case, on Friday.

But as the hearing resumes on Wednesday in the Supreme Court, the link between a possible ruling in the child marriage exception case, and the ongoing quest to criminalise marital rape in general is too obvious to be missed. If the Supreme Court considers the consent of the minor married girl to be a prerequisite for her husband to have sexual intercourse with her, it will become difficult to deny married women above 18 years of age the same right to sexual autonomy and bodily integrity.