SC Corrects Anomaly: Sex With Wife Below 18 is Rape

A two-judge bench of Justices Madan B Lokur and Deepak Gupta read down the Exception 2 to Section 375 (rape) of the Indian Penal Code.

Exception 2 states that sexual intercourse by a man with his wife, the wife not being under 15 years of age, is not rape. The judges revised the age threshold under the said exception from 15 years to 18 years.

The court said, “Exception in rape law is discriminatory, capricious and arbitrary… It violates bodily integrity of the girl child.”

However, the bench made it clear that it was not getting into the realm of marital rape of adults.

The judgement came on a petition filed by NGO Independent Thought.

The PIL had pointed out that the exception clashed with the Protection of Children from Sexual Offences Act, 2012 (POCSO), under which sexual intercourse with a girl child under the age of 18 years – with or without her consent – amounts to rape.

The petition also highlighted that it violated Articles 14 (equality before law), 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and 21 (Protection of life and personal liberty).

The petitioners had also argued that the exception clause undermined the law criminalising child marriage, which is illegal in the country, yet widely prevalent.

In fact, the Centre had defended the exception clause in the name of protecting the institution of marriage, saying that child marriage – although banned by law – was a social reality in the country.

Rana Mukherjee, senior counsel for the Centre, had said that married women between 15 and18 years could seek protection under POCSO and the Protection of Women from Domestic Violence Act, 2005.

The judges also asked the Centre and state governments to take steps to ensure that child marriages do not take place anywhere in the country.