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The Supreme Court today hailed a law enacted by the Karnataka government which declared that every child marriage, where the groom is below 21-year-old and bride less than 18, is invalid at the outset.
The apex court favoured all other states to follow the Karnataka law that declared the sexual intercourse between a girl child and her husband a punishable offence under the Protection of Children from Sexual Offences Act and the Indian Penal Code.
In two separate but concurring judgement which read down an IPC provision exempting males from being tried for rape if the wives were between the age of 15 and 18 years, Justices M B Lokur and Deepak Gupta said all the state legislatures should adopt the law made by Karnataka.
In a 70-page order, Justice Lokur said the most obvious and appropriate resolution of the conflict has been provided by the state of Karnataka where the state legislature has inserted sub-Section (1A) in Section 3 of the Protection of Child Marriage Act (PCMA), declaring that henceforth every child marriage that is solemnised is 'void ab initio' (to be treated as invalid from the outset).
"Therefore, the husband of a girl child would be liable for punishment for a child marriage under the PCMA for penetrative sexual assault or aggravated penetrative sexual assault under the POCSO Act and, if the husband and the girl child are living together in the same or shared household, for rape under the IPC," he said.
He added that "it would be wise for all the state legislatures to adopt the route taken by Karnataka to void child marriages and thereby ensure that sexual intercourse between a girl child and her husband is a punishable offence under the POCSO Act and the IPC..."
In a seperate judgement running into 57-pages, Justice Gupta also hailed the Karnataka law saying "this is how the law should have been throughout the country".
Citing the amendment, Justice Gupta said, "Where the marriage is void, there cannot be a husband or a wife and I have no doubt that protection of Exception 2 to Section 375 IPC cannot be availed of by those persons, who claim to be 'husband' of 'child brides' pursuant to a marriage which is illegal and void".
"This leads to an anomalous situation. In Karnataka, if a husband has sexual intercourse with his 'wife' aged below 18 years, since such marriage would be void ab initio, the wife cannot be treated to be a legal wife and, therefore, the husband cannot get the benefit of Exception 2 to Section 375 IPC whereas in rest of the country he would be entitled to the benefit of such exception and be immune from prosecution," he said.