SC criminalises intercourse with a minor wife

New Delhi: The Supreme Court today criminalised sex with minor wife aged between 15 and 18 years, saying the exception in the rape law was arbitrary and was violative of the Constitution.

Section 375 of the IPC, which defines the offence of rape, has 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.

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 Justice Deepak Gupta also expressed concern over the prevalent practise of child marriage in the country and said that social justice laws were not implemented with the spirit with which they have been enacted by Parliament.

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 Article 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 court had earlier reserved the verdict while questioning the Centre how the 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.

The apex court had also 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.

The petitioners have sought a direction to declare exception 2 to Section 375 of IPC as “violative of Articles 14, 15 and 21 of the Constitution to the extent that it permits intrusive sexual intercourse with a girl child aged between 15 and 18 years, only on the ground that she has been married.”

One of the petitioners had 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. They have also referred to the provisions of the POCSO Act and said these were contrary to the IPC provision.