Supreme Court rules sex with minor wife between 15 and 18 years as rape, sets right historic wrong

In a landmark judgment, the Supreme Court on Wednesday ruled that sexual intercourse with wives between 15 and 18 years of age will be considered to be rape.

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.

A bench comprising Justice 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.

Representational image. AP

Representational image. AP

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 Articles 14, 15 and 21 of the Constitution.

It asked the Centre and the states to take proactive steps to prohibit child marriage across the country.

It voiced concern over thousands of minor girls being married in mass wedding ceremonies on the occasion of Akshaya Tritiya.

The Supreme Court's verdict came on a plea challenging the validity of an exception clause in the rape law that permits intercourse or sexual act by a man with his wife, not below 15 years.

Section 375 of the Indian Penal Code, which defines the offence of rape, had an exception clause that says intercourse or sexual act by a man with his wife, not below 15 years, is not rape. However, the age of consent is 18 years.

A bench headed by Justice Madan B Lokur had on 6 September reserved its order on the plea while questioning the Centre how 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.


Responding to the query, the Centre's counsel had said if this exception under the IPC goes, then it would open up the arena of marital rape which does not exist in India.

He had referred to the concept of age of puberty among Muslims for the purpose of marriage and said these aspects have been deliberated upon by Parliament before arriving at a conclusion.

During the hearing, the apex court had 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.

As Deya Bhattacharya had written in this Firstpost article, in August, the Supreme Court had outdone itself earlier this week when it stated that “marital rape cannot be considered a criminal act”.

In the case Independent Thought versus Union of India, the Centre had told the apex court that it stands by Exception 2 of Section 375 of the IPC which protects a husband, his minor wife and the sanctity of their relationship.

Independent Thought, a non-governmental organisation, had challenged Exception 2.

"This discrepancy (brought about by Exception 2 of Section 275) puts girls, who are between the ages of 15 to 18 and are married, in a legal vacuum where they are unprotected by law from intrusive sexual intercourse. Ideally, there is no rational nexus in classifying girls under the age of 18 into two groups — those who are married, and those who are not. Moreover, the Protection of Children from Sexual Offences Act, 2012 (POSCO) states that a girl under the age of 18 years is a child and hence, does not have the capacities — physical, emotional or mental — to take an informed decision about engaging in sexual intercourse," the article had said.

With inputs from PTI


Published Date: Oct 11, 2017 11:13 am | Updated Date: Oct 11, 2017 11:51 am



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