The age of consent to sexual intercourse in India is 18, which means sex with anyone below that age is rape--the exception is if the woman is above 15 and married.
On August 29, 2016, the union home ministry told the Delhi High Court that the law would stand because these were India's "social realities", but the age of 15, as this 2014 paper pointed out, was written into law 67 years ago, imperilling millions of girls forced into matrimony.
The age of consent for married girls was 10 before it was revised to 12 in 1892, 13 in 1925 and 15 in 1949, and it has stayed unchanged since.
“Although the age of consent is 18 years and child marriage is discouraged, marriage below permissible age is avoidable but not void on account of social realities," said a home ministry affidavit quoted in the Indian Express.
"It is submitted that the social, economic and educational development of the country is still uneven and child marriages are taking place. It has been decided to retain the age of 15 years under the exception 2 of Section 375 so as to give protection to husband and wife against criminalising the sexual activity between them,” said the affidavit, filed in response to a public interest litigation against marital rape, which is not criminalised in India.
The definition of rape is clear in Section 375 of the 156-year-old Indian Penal Code (IPC), which says sex with a girl below 18--even if she consents--is rape. But Section 375, under "exception 2", provides immunity to a man who has sex with a girl above 15 if they are married. In general, Section 375 protects men from marital rape.
The government amended the law in 2013 to raise the age of consent to 18 from 16, but exception 2 retained the age of consent--last set in 1949, as we said--for a married girl at 15. The Supreme Court is now hearing a case that argues exception 2 must be struck down.
But millions of girls below 16 are also married, and although the law says sex with them is rape, there are few complaints.
More than 7.8 million girls below age 10 are married, among nearly 12 million children forced into matrimony–84% of them Hindu and 11% Muslim–IndiaSpend reported in June 2016, quoting recent census data.
There are as many married children in India as there are people in Jammu & Kashmir.
As many of 7.84 million (65%) married children were female, reinforcing the fact that girls are significantly more disadvantaged; eight in 10 illiterate children who were married were also girls.
Source: Census India
Nearly 17 million Indian children between the ages of 10 and 19—6% of the age group—are married, many of them to older men, IndiaSpend reported in March 2015, an increase of 0.9 million from 2001.
The legal age for marriage is 18, so some involved may have been adults, but it is unlikely both partners were.
The data further reveal that 72% of all Hindu girls married before 10 were in rural areas, as compared to 58.5% Muslim girls, with higher levels of education correlating with later marriage.
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