The POCSO Act and Minor Wives

I read the Cover Story “No Excuse for Child Abuse: Re-appraise and Fine-Tune POSCO Act” by Hemant Kumar in the February 2016 issue. The learned author laboured hard to point out that in certain cases the overriding but milder sway of the provisions of the POCSO Act by virtue of proviso in Section 42A may have the effect of defanging the prescription of harsher punishment as set out in Section 42 of the said Act. I humbly beg to differ on that count because the very purpose of enactment of POCSO Act inter alia is to adequately penalize the sexual offenders against children to serve deterrent messages to such offenders. Hence, the mandate of Section 42 vis-à-vis harsher punishment will mount over the Section 42A of the Act in any given instance. Pertinent here is to dwell upon the issue of sexual intercourse with a minor wife. As per IPC vide Section 375- Explanation 2, sexual intercourse or sexual acts (with or without her consent) by a man with his own wife, the wife being under fifteen years of age, is rape and punishable vide Section 376 with imprisonment for a term of not less than seven years. However, as per IPC consensual or non-consensual sexual intercourse or sexual acts with a minor wife aging between 15 to 18 is no offence. On the other hand, POCSO Act gives no such exemption to husband. The term “child” as defined vide Section 2(d) in POCSO Act means any person below the age of eighteen years which obviously also includes a minor wife. In such cases the overriding provision in Section 42A of the POCSO Act will come handy and husband(s) may be punished by resorting to relevant penal provisions of the POCSO Act notwithstanding the impunity conferred on husband(s) in IPC in such cases.
NOTE:
Section 42. Alternate punishment : Where an act or omission constitutes an offence punishable under this Act and also under section166A,354A,354B,354C,354D,370,370A,375,376,376A,376C,376D,376E or section 509 of the Indian Penal Code, then, not withstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.
Section 42A. Act not in derogation of any other law :
The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency.

PS:- 

Sex With Minor Wife Is Rape, Police Can Register Case On Wife’s Complaint: SC Reads Down Exception-2 To S.375 IPC (11 October 2017)

A two Judge Bench of Supreme Court held that sexual intercourse with minor wife is rape and  a case can be registered against the Husband oh her complaint....

In a landmark ruling, the Supreme Court today read down exception 2 to Section 375 (which defines rape) of the IPC (as amended by the Criminal Law (Amendment) Act, 2013) which allowed such a sexual act. The age of consent has been made 18 from 15 in ...

Exception 2 mentions that sexual intercourse or sexual acts by a man with his own wife,( the wife not being under 15 years of age), is not rape. The petitioner argues that this makes it conducive for child marriages and allows husbands of illegal ch...
The Government’s justification that the exception to rape has been provided to protect the institution of marriage, creates an arbitrary classification of girls between the ages of 15 and 18, and has no rational nexus with the object, he had suggeste...

Mukherjee referred to both the Protection of Children From Sexual Offences Act, 2012, (POCSO) and the Protection of Women from Domestic Violence Act, 2005, and said married women of 15-18 age group, if aggrieved with their marriage, could seek protec...

Read more at: http://www.livelaw.in/breaking-sex-minor-wife-rape-police-can-register-case-wifes-complaint-sc-reads-exception-2-s-375-ipc/