Sex with wife below 18 is rape, rules SC; Tells Centre, states to take proactive steps to prohibit child marriages

The Supreme Court on 11 October made a landmark ruling stating that sexual relations by a man with his minor wife would be considered rape, and a criminal case would be registered against him on her complaint.

In the concurring judgment, a bench of two judges, justices Madan B Lokur and Deepak Gupta, read down Exception 2 of Section 375 of the Indian Penal Code (IPC), which exempted rape in case of marriages of minor girls.

According to the Criminal Law Amendment Act, 2013, the age of consent was amended from 15 to 18. However, the bench clarified explicitly that it reserved its opinions on the issue of "adult marital rape" because it was not the subject matter of the present case before the court.

Representational image. Reuters

Representational image. Reuters

The court was in session and the ruling was on a public interest litigation (PIL) by an NGO, Independent Thought, that challenged the exception to Section 375.

This provisional exception exempted marital rape of girls between 15 and 18 years of age by their husbands. Independent Thought’s plea was that all minors should be protected from rape under Indian criminal law, irrespective of marital status. The discrepancy in protection from rape results in an obvious legal vacuum where girls between the ages of 15 to 18, who are married, are unprotected by criminal law from forced and intrusive sexual intercourse.


The petition referred to various provisions of the Protection of Children from Sexual Offences Act (POSCO), 2012 that were at odds with Section 375. According to POSCO, a physical relationship with a minor constitutes rape and sexual relations between a man and his minor wife are not exempted under this legislation.

Pronounced the judgment, Justice Lokur stated: “The exception carved out under Section 375 (which defines rape) exempting marital rape for minors is artificial and contrary of Article 21 (Right to Life) of the Constitution of India.”

The Central government’s argument was to retain the Exception 2 to Section 375 on the ground that “the Parliament was conscious of its social obligation".

Rana Mukherjee, the senior counsel for the central government, stated that aggrieved girls between the ages of 15 to 18 can seek protection under the POSCO as well as the Protection of Women from Domestic Violence Act (PWDVA).

He also suggested that the petitioner should ask for relief under "sexual abuse" defined in the PWDVA. Sexual abuse under PWDVA is defined as "any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of a woman". Another argument of the Centre is similar to its arguments on the criminalisation of marital rape where it said that if recognised as a crime, it could “destabilise the institution of marriage” and it would be a weapon to harass husbands.

The petitioner's arguments were based on constitutional rights that her rights under Article 14 (Right to Equality Under Law) and 21 (Right to Life) of the Constitution of India were violated because of the discrepancy between the provisions to protect young girls. Moreover, the contention was also that the discrepancy classifies women into two categories based solely on their marital status but such categorisation did not have any reasonable nexus to the object in mind.


“The said provision classifies girl children below the age of 18 years into two categories: (i) namely those who are married, and (ii) those who are not married. A husband can have sexual intercourse with his wife if she is above the age of 15 years irrespective of her consent. However, for all other purposes, the age of consent is 18 years. The petitioner submits that this classification has no rational nexus with the object sought to be achieved."

The petitioner also looked at the dichotomy between the Exception 2 of Section 375 as well as other statutes such as POSCO, Prohibition of Child Marriage Act 2006 and Juvenile Justice Act 2000. “All the (above) said acts regard a girl less than 18 years as a child. POCSO specifically bars all sexual activities with girl children below the age of 18 years and the offence is aggravated if the accused is related through marriage. In its attempt to protect status quo, the Parliament has chosen not to increase the age of consent in case of a married girl from 15 to 18 years thereby impinging on the Fundamental Rights of the girl child. If a girl is not mentally and physically fit to give consent till she reaches 18 years, her marriage at age of 15 years or 16 years or 17 years does not change the situation."

While the verdict ends all such discrepancies and disparities, it also ends a "tacit acceptance" of child marriages because of Exception 2. Child marriage has been declared illegal and remains a punishable offence, but in many rural parts of India, it is still practised.

The bench stated that “the exception in rape law under the IPC is contrary to other statutes, violates bodily integrity of girl child” and stated that the Centre and state governments must take proactive steps to prohibit and end the phenomenon of child marriage across the country.

The verdict is a progressive one, more so because the Supreme Court’s stance would, hopefully, result in a flurry of amendments to criminal laws in India.

Vikram Srivastava, the founder of Independent Thought, spoke with Firstpost and said that the first stage was the recognition of the right of young girls to be protected from abuse and that has been achieved and that it is a liberal step forward.

“The judgment will boost the ‘Beti Bachao, Beti Padhao’ campaign and girls will be saved from abuse after this verdict. What we now need is to raise the age of young girls to 18 for a comprehensive Right to Education,” he added.


Published Date: Oct 12, 2017 06:51 am | Updated Date: Oct 12, 2017 06:51 am



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