Sex with minor wife is rape, says Supreme Court in historic judgement
New Delhi: In a landmark judgement, the Supreme Court on Wednesday said that sexual intercourse with a minor wife is rape. The court said that the exception to a husband whose wife is between 15 and 18 years of age cannot survive and needs to be done away with. The Supreme Court struck down Exception 2 to Section 375 of the Indian Penal Code, which exempts marital rape of girls between the age of 15 and 18 from the purview of rape.
The Prevention of Children from Sexual Offences (POCSO) Act has determined the age of consent to be 18 years which cannot be reduced, the court ruled.
The Supreme Court bench, comprising Justice Madan B Lokur and Deepak Gupta, said that the exception to the rape law was contrary to the philosophy of other statues and violates the bodily integrity of a girl child.
It said that the provision granting immunity from prosecution violates Article 14, 15 and 21 of the Indian Constitution. Noting that law cannot compromise with the bodily integrity of minor girls, the Supreme Court said that the discrimination between a married girl child and an unmarried girl child is artificial.
The Supreme Court said that it cannot turn a blind eye to girl child trafficking and asked the state to take steps to prevent child marriages. It also expressed concern over the practice of mass marriages of minor girls on Akshaya Tritiya every year.
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 Supreme Court’s landmark judgment came on a petition filed by NGO Independent Thought. The bench, however, clarified that it has not dealt with the issue of marital rape as it was not raised before it by respective parties.
The Centre, however, told the Supreme Court on Tuesday that it justifies an exemption in the IPC section related to rape under which a husband having sexual intercourse with his minor wife aged between 15 and 18 is not a crime. In an affidavit, the Centre said the exception cannot be struck down when child marriage, though banned in 2006 was still prevalent in India and therefore the exception was required to protect husband and minor wives in such marriages.
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