Supreme Court says sexual relations between man and minor wife is rape

New Delhi: In a landmark ruling, the Supreme Court on Wednesday criminalised sexual relations between a man and his minor wife under the offence of rape. This move will go a long way in discouraging the prevalent practice of child marriage in India.

In a concurring judgment, passed by justices Madan B. Lokur and Deepak Gupta, the court read down the provision of the Indian Penal Code (IPC) which exempted marital rape in case of minors. The earlier age of 15 years has now been modified to 18 years for claiming exemption under the amended rape provisions.

“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,” said justice Lokur, while pronouncing the judgment.

It was also clarified that the court had not gone into the issue of marital rape since it was not the subject matter of the case before the court.

The court was ruling on a public interest litigation (PIL) by an NGO, Independent Thought, challenging the exception made out under provisions of the IPC, which exempted marital rape of girls between 15 and 18 years of age by their husbands on the pretext of marriage.

Under an amendment to Section 375 (which defines rape) of the IPC, sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.

The Centre had maintained that keeping the social and economic conditions of the country in mind, Parliament had fixed the age of 15 years. Its stand has been similar regarding marital rape, where it said that if recognised as a crime, it could “destabilize the institution of marriage, apart from being an easy tool for harassing husbands”.

The court had earlier observed that according to the prevailing law, if a man has physical intercourse with a girl under 15 years of age, it is termed as rape, irrespective of consent, and if she was below 18 years of age but more than 15 years and married, then no offence of rape is made out.

The petitioner had sought the court’s direction to declare the legal exception under the IPC as violative of Articles 14 (equality under law) and 21(right to life) of the Constitution of India to the extent that it permits intrusive sexual intercourse with a girl child aged between 15 and 18 years, only on the ground of her being married.

It also referred to the provisions of the Protection of Children from Sexual Offences Act (POCSO), 2012, which were contrary to the IPC provision. Under POSCO, a physical relationship with a minor constitutes the offence of rape and this does not exclude such relationship between a man and his minor wife.

Advocate Gaurav Agrawal, appearing for the petitioner, had told the court that the distinction in treatment of a girl being 15 or 18 years of age was illegal and unconstitutional and must be done away with.

While the legal age for matrimony of a girl in India is 18 years, there are still a significant number of cases where the girl is between 15 and 18 years at the time of marriage.