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    | 4 min read

    Sex With Wife Below the Age of 18 is Rape, Says Supreme Court

    In a landmark judgement, the Supreme Court on Wednesday, 11 October, held that sexual intercourse with a minor wife would, henceforth, be considered rape, provided a court took cognisance of the matter within a year of the commission of the offence.

    Justice Madan B Lokur wrote the main judgment, and Justice Deepak Gupta wrote a separate but concurring opinion, with both arriving at the same conclusion for essentially the same reasons.

    Grounds for Removing the Exception

    The apex court said that Exception 2 to Section 375 of the Indian Penal Code (IPC) – which exempts marital rape of girls between the age of 15 and 18 from the purview of rape – is violative of Article 14, 15 and 21 of the Constitution.

    The court found that this exception created an artificial distinction between married and unmarried girls between the ages of 15 and 18 that was arbitrary and discriminatory, and led to the commission of acts detrimental to the health and dignity of the victims.

    The judges also said that the exception in the rape law was contrary to India’s international obligations under treaties such as the Convention on Rights of the Child, as well as special statutes dealing with the rights of children namely the Juvenile Justice Act and the Protection of Children from Sexual Offences Act (POCSO), both of which offer special protections to children under the age of 18.

    The conflict between the child marital rape exception and POCSO had a significant outcome of the case, as under POCSO, any sexual act with a child under the age of 18 years is a criminal offence. This became grounds for the court to not only hold that there was an arbitrary distinction in the way married minor girls were being treated, but also that the IPC provision would be overridden as regards minor girls, as required by s.42A of POCSO.

    It must be emphasised, however, that this case relates only to child marital rape, not marital rape as a whole, and the judges took particular care to note that this judgment would not affect the legal position on marital rape as a whole. The Delhi High Court is currently hearing a challenge against marital rape in respect of adult women.

    Take Proactive Steps to Prohibit Child Marriage: SC

    The bench also expressed concern over the prevalent practise 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 judges dismissed the Central Government’s arguments against the reading down of the exception on the grounds that child marriages were prevalent in India, noting that the age of consent could not be modified just because such illegal marriages took place. Justice Lokur took strong exception to this argument and noted that the law could not be static, and that:

    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.

    Justice Gupta, in his 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”.

    It asked the Centre and the 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.

    What The Petitioner Said

    The judgment was on a petition filed by an NGO Independent Thought, which contested the Exception 2 clause of Section 375. The NGO had filed the case back in 2013, and was represented in court by advocate Gaurav Aggarwal who provided his services pro bono.

    It pointed out during the hearing that the age of sexual consent in 18, but there are girls, between the ages of 15 and 18, who are married, and and have sex with their husbands even if she does not give her consent.

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

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

    The Quint spoke to Vikram Srivastava, the founder of Independent Thought, about the significance of this decision by the Supreme Court. He was obviously pleased with the judgment and was hopeful that the judgment “would lead to a sea-change in the way people will think and the way people will move ahead when it comes to marrying children.”

    You can catch the full interview below:

    (With inputs from PTI)

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