Free Press Journal

Harmonious construction of pro-child laws needed, says SC


New Delhi : Inconsistencies in laws dealing with offence of sexual assault of girl child on Wednesday came to fore in the Supreme Court, which said there was a need to hamonise conflict in the laws to protect their human rights.

The apex court said there should be harmonious construction of all pro-child laws — the Juvenile Justice Act, the Protection of Children from Sexual Offences Act (POCSO), the Prohibition of Child Marriage Act and the IPC to avoid any conflict among them while dealing with the issue of sexual intercourse involving a girl below the age of 18.

Referring to the IPC and the POCSO Act, the apex court said there was a visible conflict between the two laws with regard to the sexual assault on girl child aged between 15 to 18 years. The top court said that different and irrational standards have been laid down for the treatment of the girl child by her husband and it is necessary to harmonise the provisions of various statutes. 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. However, the age of consent is 18 years.

However, exception 2 to Section 375 of the IPC, says that if a girl child between 15 and 18 years of age is married, her husband can have non-consensual sexual intercourse with her, without being penalised under the IPC, only because she is married to him and for no other reason. Similarly, the Protection of Children from Sexual Offences Act (POCSO Act) 2012 was formulated in order to effectively address sexual abuse and sexual exploitation of children.

“There is an apparent conflict or incongruity between the provisions of the IPC and the P OCSO Act. The rape of a married girl child (between 15 and 18 years) is not rape under the IPC and therefore not an offence in view of Exception 2 to Section 375 thereof but it is an offence of aggravated penetrative sexual assault under Section 5(n) of the POCSO Act and punishable under Section 6 of that Act.

“This conflict or incongruity needs to be resolved in the best interest of the girl child and the provisions of various complementary statutes need to be harmonised and read purposively to present an articulate whole,” Justice Madan B Lokur said.

‘Hindu, Muslim marriage laws not in consonance with PCMA’

Highlighting the inconsistencies in various laws, the Supreme Court on Wednesday also touched upon separate marriage laws for Hindus and Muslims and said the provisions make a “mockery” of the Prohibition of Child Marriage Act (PCMA). Under the Dissolution of Muslim Marriages Act, 1939, if a minor girl under the age of 15 years is married under Muslim law, she can obtain a decree of dissolution of marriage before she attains the age of 18 years provided that the marriage has not been consummated.