Govt drags feet on 'coming-of-age' law

13 Jul 2007, 0320 hrs IST,Dhananjay Mahapatra,TNN

NEW DELHI: Last year, a petition filed by National Commission for Women (NCW) had raised questions about when a young girl come of age in India. Responding to the court’s notice, Centre through additional solicitor-general Gopal Subramaniam, had assured on January 3 this year that the government is in the process of removing anomalies and so sought time for bringing a clear legislation in this regard.

Yet, after the budget session of Parliament, the promised action to rectify the anomalies has yet to emerge from Centre’s legislative closet, a possible reason why the apex court once again sought a response from government.

The seeds of confusion lie in provisions of Child Marriage (Restraint) Act, 1929, Hindu Marriage Act, 1955, the exception to rape in Indian Penal Code and Immoral Traffic (Prevention) Act.

The Child Marriage (Restraint) Act, 1929, says a child is a person, who if a male, has not completed 21 years of age, and if a female, has not completed 18 years

The Hindu Marriage Act, 1955, says a female has to be 18 years before she can legally marry

However, the Indian Penal Code, while defining rape in Section 375, exempts a person from this charge if he has forcible sexual intercourse with his wife who is above 15 years of age

Under the Immoral Traffic (Prevention) Act, 1986, a child means a person who has not completed the age of 16 years and a minor means who has completed the age of 16 years and not completed 18 years

The Indian Majority Act says a person is a major if he/she has completed 18 years

These legal prescriptions about adulthood of a female and her marriageable age, coupled with the exception set out under Section 375 of IPC, complains Sharma in his petition, has encouraged "Romeos" to lure girls who are above 15 years of age. The petition’s concern is obvious — that girls not quite able to take a mature decision on marriage may fall prey to a passing fancy or the glib talk of an older man.

On the other hand, the ostensible concern of high courts which ruled on 15 being the "age of discretion" was whether intercourse in an "underage" marriage could amount to the criminal offence of rape given that the girl had consented to marriage.

The courts have refrained from making things clearer when dealing with cases of a young couple where the girl has completed 15 years of age, Sharma’s counsel Daya Krishan Sharma pleaded, citing the Andhra Pradesh HC and the Delhi HC rulings.

In both these cases, HCs had refused to proceed on rape charges against the husbands though the girls were not of marriageable age as per the Hindu Marriage Act. The HCs had ruled that the girls, having completed 15 years of age, had reached the "age of discretion".

During hearing of the NCW petition, the apex court took a "humanitarian" approach and clarified that it would not set aside these two HC orders as it would unsettle the lives of the young couples.