Sex With Minor Wife Is Rape Judgement by Supreme Court

The Supreme Court, in a landmark judgement, today criminalized sex with a minor wife aged between 15 and 18 years, saying the exception in the rape law was arbitrary and violation to the constitution.

supreme court gay sex

Section 375 of the IPC, which defines the offence of rape, has an exception clause that says intercourse or sexual acts by a man with his wife, not below 15 years, is not rape.

However, the age of consent is 18 years.

The apex court said the exception in the rape law was contrary to the philosophy of other statutes and violates the bodily integrity of a girl child.

The judgement was in a petition filed by the NGO Independent Thought. Advocate Gaurav Agrawal had appeared for the petitioner NGO.

A bench comprising Justices Madan B. Lokur and Deepak Gupta also expressed concern over the prevalent practice of child marriage in the country and said social justice laws were not implemented with the spirit with which they have been enacted by parliament.

The bench clarified that it has not dealt with the issue of marital rape as it was not raised before it by respective parties.

Justice Gupta, who wrote a separate but concurrent verdict, said the age of marriage was 18 in all laws and the exception given in the rape law under the IPC is “capricious, arbitrary and violates the rights of a girl child”.

The apex court said the exception is violative of Article 14, 15 and 21 of the constitution.

It asked the Centre and states to take proactive steps to prohibit child marriage across the country, and voiced concern over thousands of minor girls being married in mass wedding ceremonies on the occasion of Akshaya Tritiya.

The court had earlier reserved the verdict while questioning the Centre on how the parliament could create an exception in law declaring that intercourse or a sexual act by a man with his wife, aged between 15 and less than 18 years, is not rape when the age of consent is 18.

The apex court had also observed that child marriage cannot go on like this just because this illegal practice was assumed to be legal and has been going on for ages.

The petitioners had sought a direction to declare exception 2 to Section 375 of IPC as “violative of Articles 14, 15 and 21 of the Constitution to the extent that it permits intrusive sexual intercourse with a girl child aged between 15 and 18 years, only on the ground that she has been married”.

The petitioners had argued that the exception to Section 375 of the IPC was defeating the purpose of the Prohibition of Child Marriage Act and was also in violation of international conventions to which India was a signatory.

They had also referred to the provisions of the POCSO Act and said these were contrary to the IPC provision.

In August this year, the Centre had countered the petition by saying that given the “socio-economic realities” around child marriage in India, the exception is needed to “protect the institution of marriage”.

“Otherwise, the children from such marriages will suffer,” the Centre’s lawyer Binu Tamta said then.

“Isn’t this an incentive for child marriage?” Justice Lokur had asked in response.

The exception that the court was dealing with has been the centre of controversy for years, since it fails to criminalise marital rape or recognise the importance of consent within a marriage. “Parliament has extensively debated the issue of marital rape and considered that it was not an offence of rape. Therefore, it cannot be considered as a criminal offence,” the bench said previously in this case.

(With PTI inputs)

thoughts/comments