NEW DELHI: The Supreme Court today made the National Commission for Women (NCW) a party to a PIL challenging constitutional validity of a provision in rape laws that permits "intrusive sexual intercourse with a girl child aged between 15 to 18 years" by the husband.
"There is a substance in it," a social justice bench comprising justices Madan B Lokur and U U Lalit said and ordered that the Secretary of NCW to be made a party.
The plea referred to Exception 2 to Section 375 (rape) of the IPC that says that sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape. It also cites other laws having contradictory views on martial rape of minor girl.
The court was hearing a PIL filed by NGO 'Independent Thought' through its founder Vikram Srivastava.
The plea has sought a declaration that Exception 2 to Section 375 of the IPC was "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 to 18 years only on the ground that she has been married."
It also referred to the provisions of Protection of Children from Sexual Offences Act, 2012 (POCSO) and said that these provisions were contrary to the IPC provision.
The POCSO provision provides that sexual intercourse with a minor constitutes the offence of rape and it does not exclude such relationship between a man and minor wife.
The plea has highlighted the anomalies among various law and also cited one of the provisions of the CrPC that says: "No court shall take Cognizance of an offence under Section 376 of the Indian Penal Code (45 of 1860), where such offences consists of sexual intercourse by a man with his own wife, the wife being under eighteen years of age, if more than one year has elapsed from the date of the commencement of the offence."
The plea said, "Exception 2 (of Section 375 of IPC) is also violative of Article 21 of the Constitution. Article 21, includes Right to live with dignity and freedom to make choices about one's body.
"The Exception 2 violates the right of a girl child, aged between 15 and 18 years, as she no longer has a right to choose what she wishes to do with her body."
It also said that "the Exception closes all doors for the girl child for her protection. Rights of parents cannot be absolute and best interest of the child has to take primacy.
"It is the duty of State to protect the right to live with human dignity of the girl child between ages 15 years and 18 years, which the State has failed to do."