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The Supreme Court held on Wednesday, 11th October, 2017 that sex with one’s minor wife will amount to rape. A Bench comprising of Justice Madan Lokur and Justice Deepak Gupta watered down an exception to Section 375 of the Indian Penal Code (IPC) which said sexual intercourse by a man with his wife not under the age of 15 would not amount to rape whereas the age of consent was 18 years.

The order came on a PIL by NGO ‘Independent Thought’ filed in 2013, demanding that clause (2) in Section 375 of the IPC be declared unconstitutional as it violated Articles 14 (right to equality),15 (right to non-discrimination) and 21 (right to live with human dignity) of the Constitution. The Petitioners argued that the exception clause went against the objectives of the Prohibition of Child Marriage Act, 2006.

 

The Petitioner challenged the exception on the ground that it permitted sexual intercourse with a girl child aged between 15 and 18 only on the grounds that she was married. The age of consent for sexual relationship should be treated as 18, irrespective of the marital status of the girl child, the petitioner contended.

The Apex Court held that, “In our opinion, sexual intercourse with a girl below 18 years of age is rape, regardless of whether she is married or not” and “Merely because child marriages have been performed in different parts of the country as a part of a tradition or custom does not necessarily mean that the tradition is an acceptable one, nor should it be sanctified as such. Times change and what was acceptable a few decades ago may not necessarily be acceptable today,”. Further held that “The exception in rape law under the IPC is contrary to other statutes, violates bodily integrity of girl child,” The Court also said that an exception in the rape law is discriminatory, capricious and arbitrary.

The Supreme Court ruling harmonises the definition of rape under the IPC with the Protection of Children from Sexual Offences Act (POCSO Act), 2012 that fixed the age of consent of the girl at 18 and also treats sex with a minor as crime, irrespective of her consent. It was also held by the Bench that “The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. The artificial distinction is discriminatory and is definitely not in the interest of the girl child,..”

Taruna Verma

Senior Advocate

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