Senior counsel for the Central Government, Rana Mukherjee today concluded his submissions before the Supreme Court bench of Justices Madan B.Lokur and Deepak Gupta, defending the retention of Exception 2 to Section 375 Indian Penal Code on the ground that Parliament was conscious of its social obligation.
Mukherjee referred to both the Protection of Children From Sexual Offences Act, 2012, (POCSO) and the Protection of Women from Domestic Violence Act, 2005, and said married women of 15-18 age group, if aggrieved with their marriage, could seek protection under both these Acts, as they do not have similar exception like the Indian Penal Code.
Mukherjee referred to the definition of “sexual abuse” under the Protection of Women From Domestic Violence Act and claimed it would take care of petitioners’ concerns. The term “sexual abuse” is defined under the Act as including any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman.
In the written note submitted by Mukherjee it is submitted as follows;
"In view of the inescapable factum of child marriages despite the 2006 enactment being prevalent in the Indian society by and large though diminishing, the Government in its wisdom sought to strike a balance between the necessity to impose the rigours of the 2006 Act with its full force while at the same time recognising that child marriages in any event below the age of fifteen would be void and between the ages of 15 to 18 voidable and therefore sought to, as can be deciphered from the various Law Commission Reports and Parliamentary Debates that such marriages between the ages of 15 – 18 though deprecated would still not fall foul of Section 375 and 376 of the Indian Penal Code as a method of restrictive social welfare. In the circumstances, the prayers in the present writ petition as sought for may not be granted".
POCSO, on the other hand, defines several sexual acts, which are punishable under the Act. Justice Deepak Gupta observed that a child, who has married, is likely to use the protection offered by POCSO, rather than the Protection of Women from Domestic Violence Act, in view of the stringent punishment prescribed under the former for the offences. The maximum punishment prescribed under POCSO is three years imprisonment and fine. Both these Acts have no child marriage exception - a fact emphasised by Mukerjee. Section 42A of POCSO clearly says it would have overriding effect on the provisions of any other law to the extent of inconsistency between them. The Protection of Women from Domestic Violence Act, however, prescribes only maximum imprisonment of one year or with maximum fine of Rs.20000 or with both on the respondent for the breach of protection order.
Petitioner’s counsel, Gaurav Agrawal, read from the Statement of Objects and Reasons of the POCSO Bill, to suggest that the Government had the duty under Article 15(3) of the Constitution, to make special provision for women and children.
The bench has concluded the hearing and reserved its judgment in the case. The hearing of the petitions challenging the decriminalisation of marital rape in general, in the Delhi high court was deferred on Monday, in view of the Supreme Court’s hearing. The High Court will decide on Friday, whether to continue its hearing of the case, in view of the overlapping concerns of the petitioners in the two cases.
"In my oral submissions i did preface it by saying that and marriage below 18 years had to be outlawed and i hoped Parliament would do it sooner than later as it was an evil practice"