Breaking: Sex With Minor Wife Is Rape, SC Reads Down Exception-2 To S.375 IPC [Updated] [Read Judgment]

Breaking: Sex With Minor Wife Is Rape, SC Reads Down Exception-2 To S.375 IPC [Updated] [Read Judgment]

A two Judge Bench of Supreme Court held that sexual intercourse with minor (below 18 years)  wife is rape.

"we are left with absolutely no other option but to harmonize the system of laws relating to children and require Exception 2 to Section 375 of the IPC to now be meaningfully read as: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.” It is only through this reading that the intent of social justice to the married girl child and the constitutional vision of the framers of our Constitution can be preserved and protected and perhaps given impetus". Justice Lokur said in his Judgment. 

Justice Deepak Gupta in his Judgment Clarified that Section 198(6) of the CrPC  will apply to cases of rape of “wives” below 18 years, and cognizance can be taken only in accordance with the provisions of Section 198(6) of the Code.

As per S.198(6) Of CRPC,

"No Court shall take cognizance of an offence under section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual inter-course by a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence"

It is also clarified that nothing said in this judgment shall be taken to be an observation one way or the other with regard to the issue of “marital rape”

In a landmark ruling, the Supreme Court today read down exception 2 to Section 375 (which defines rape) of the IPC (as amended by the Criminal Law (Amendment) Act, 2013) which allowed such a sexual act. The age of consent has been made 18 from 15 in these cases.

The verdict is set to have a huge impact on petition seeking criminalization of marital rape which is pending in the Delhi High Court.

After Justice Madan B Lokur read out the operative portion. Justice Deepak Gupta had a separate concurring judgment with deferent reasoning and observations.

Justice Lokur observed that the "issue before us is of paramount importance" and spoke about the ill-effects of child marriage.

He also held that the exception in the rape rules led to trafficking.

"However we refrain from commenting on adult marital rape as the issue is not before us", he said.
Justice Gupta ruled that the exception was violative of Article 14, 15 and 21 and the inconsistency with POCSO had to be removed.

A bench of Justices Madan B Lokur and Deepak Gupta was delivering verdict in a PIL filed by NGO Independent Thought. Its lawyer Gaurav Agrawal has challenged the validity of Exception 2 to Section 375 (which defines rape) of the IPC (as amended by the Criminal Law (Amendment) Act, 2013), as violative of Articles 14, 15 and 21 of the Constitution as it permits intrusive sexual intercourse with a girl child aged between 15 to 18 years only on the ground that she has been married. The PIL argued that such a clause will only promote child marriage.

PETITIONER’S STAND

The PIL pointed out the rule's anomaly with 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 - would constitute rape.



Exception 2 mentions that sexual intercourse or sexual acts by a man with his own wife,( the wife not being under 15 years of age), is not rape.

The petitioner argues that this makes it conducive for child marriages and allows husbands of illegal child marriages to force themselves on their wives, if they belong to the age group of 15 to 18 years.  Section 375 defines rape as sexual intercourse or any of the specified sexual acts with or without the consent between a man and a girl under 18 years of age.



The Government’s justification that the exception to rape has been provided to protect the institution of marriage, creates an arbitrary classification of girls between the ages of 15 and 18, and has no rational nexus with the object, he had suggested.

GOVERNMENT’S STAND

Senior counsel for the Central Government, Rana Mukherjee defended the retention of Exception 2 to Section 375 Indian Penal Code on the ground that Parliament was conscious of its social obligation.



Mukherjee referred to both the Protection of Children From Sexual Offences Act, 2012, (POCSO) and the Protection of Women from Domestic Violence Act, 2005, and said married women of 15-18 age group, if aggrieved with their marriage, could seek protection under both these Acts, as they do not have similar exception like the Indian Penal Code.

Mukherjee referred to the definition of “sexual abuse” under the Protection of Women From Domestic Violence Act and claimed it would take care of petitioners’ concerns.

The term “sexual abuse” is defined under the Act as including any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman.

Read the Judgement