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Sana Shakil, TNN | Nov 2, 2013, 11.53PM IST
NEW DELHI: Stating that a sexual act between a man and his wife who is more than 15 years old does not amount to rape, a trial court has acquitted a youth of raping and kidnapping a minor. The court also termed their marriage valid saying, "child marriage contracted with a female of less than 18 years or a male of less than 21 years would not be a void marriage but a voidable one".
The court order is significant in the light of demands to amend the law related to child marriage. Human rights activists have time and again criticized the authorities for not doing enough to ban child marriage in India.
The country's law defines a child as someone younger than 18 years and the Prohibition of Child Marriage Act prescribes jail for anyone-including parents-for allowing child marriage.
A survey found that every second bride in the country is a child but only around 400 people were arrested under this law in 2012.
Additional sessions judge Savita Rao let off Prashant Kumar Sahani after noting that the minor had eloped and married him by choice.
The court pointed out that the consent of the girl would be immaterial since she was less than 16 years old, but since she had married the accused "willingly" and was aged more than 15 years at the time of the incident, the general law would not apply in this case.
Relying upon a high court judgment, the judge said, "The consent of prosecutrix (alleged victim) below the age of 16 years is immaterial, except when rape is committed by a male who is married to the girl. Section 376 IPC (rape) does not treat the rape committed by a husband on his wife above the age of 15 years as an offence".
The court also held that their marriage cannot be declared null.
The court must be commended for using a common sense approach to the law here. Clearly, treating marriages as void whenever the bride or groom is below the legal age for marriage is an impractical idea in the Indian context. The idea of discouraging inordinately early marriage is well-intentioned, but can be best actualized by building opinion on it through social reform rather than by brandishing the legal stick.