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Section 375 (rape) of IPC has an exception clause which says “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
Section 5 (n) of POCSO says that sexual intercourse with a child below 18 years is an “aggravated penetrative sexual assault” inviting penal consequences.
A bench headed by Chief Justice J S Khehar considered the inconsistency highlighted by Nobel Laureate Kailash Satyarthi through his NGO Bachpan Bachao Andolan and asked the Centre to consider their representation and file its response in four months.
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“If you are still unhappy with the response, you are at liberty to approach the court,” the bench said.
Section 6 of POCSO Act provides punishment of rigorous imprisonment not less than 10 years to life imprisonment for aggravated penetrative sexual assault on a child below 18 years of age.
The PIL filed by advocates Bhuwan Ribhu and Jagjit Singh Chabra said that court should pass order declaring that the provisions of POCSO shall be mandatorily enforced and applied in all cases of sexual assault upon children, below the age of 18, regardless of their marital status.
The petition has said that “in a large number of cases that despite being a child by definition (under the age of 18), provisions of POCSO are not being applied and the benefit of a special act is not being afforded to those children, who by definition fall under POCSO, but who are in a married relationship”.