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Sex With Minor Wife : Supreme Court Acquits Husband Of Rape Relying On Exception 2 To Sec 375 IPC

Awstika Das

6 March 2023 7:24 AM GMT

    • Sex With Minor Wife : Supreme Court Acquits Husband Of Rape Relying On Exception 2 To Sec 375 IPC

    The Supreme Court recently acquitted a man who was convicted for the offence of rape for sexual intercourse with his minor wife by relying on Exception 2 to Section 375 of the Indian Penal Code, which exempts marital rape from punishment if the wife was aged above 15 years.A bench of Justices B.R. Gavai and Sanjay Karol was considering an appeal that had arisen out of a conviction under...

    The Supreme Court recently acquitted a man who was convicted for the offence of rape for sexual intercourse with his minor wife by relying on Exception 2 to Section 375 of the Indian Penal Code, which exempts marital rape from punishment if the wife was aged above 15 years.

    A bench of Justices B.R. Gavai and Sanjay Karol was considering an appeal that had arisen out of a conviction under the Protection of Children from Sexual Offences Act, 2012, which a single judge of the Karnataka High Court had later substituted with a conviction under Section 376 of the Indian Penal Code, 1860. Since the POCSO Act came into force in November 2012, it would have no retrospective effect, the judge held. However, since the survivor was a minor below the age of 16, the question of consent was irrelevant and the appellant was liable to be convicted for the offence, the high court had said.

    However, the apex court bench headed by Justice Gavai took a different stand. The Court noted that the prosecutrix has filed an affidavit stating that she was married to the appellant and that a child is also born in the wedlock.  The appellant contended that he had married the prosecutrix and their relationship was consensual

    Relying on Exception two to Section 375, the court held, “It is clear that the sexual act by the appellant with the prosecutrix, who are husband and wife, with the latter being above 15 years of age would not amount to rape as per the provision.”

    After outlining the legal position as mentioned above, the bench held:

    “From the evidence placed on record, it would be clear that the prosecutrix was above the age of 15 years when the sexual act was alleged to have taken place as a result of which the prosecutrix conceived. In the result, the conviction is not sustainable. The appeal is allowed, and the appellant is acquitted of the charges charged with. He is directed to be set at liberty, if not required in any other case. The bail bonds of the accused shall stand discharged.”

    In 2017, SC had read down Exception 2 to Section 375 IPC

    In 2017, the Supreme Court in the judgment Independent Thought v. Union of India, (2017) 10 SCC 800 had read '15 years' in Exception 2 to Section 375 as '18 years' so as to bring sex with a minor wife within the ambit of the rape offence. However, the decision was given only prospective effect. Therefore, the judgment in Independent Thought was not applicable to the present case, in which the offence took place in 2012.
    In Independent Thought, , a two-judge bench of the Supreme Court resolved the incongruity between the ages of consent given under the said provision of the Indian Penal Code and the POCSO Act. Owing to the original provision in the criminal code, an exception was engrafted on India’s rape laws for sexual intercourse between a man and his underage wife, provided that the girl was between 15 and 18 years of age. However, the top court adopted a purposive approach to read down the exception to the extent that the age of consent supplied under it was raised to 18 years and sex with an underage wife was altogether criminalised. Justice Madan Lokur had written:

    “We are left with absolutely no other option but to harmonise the system of laws relating to children and require Exception two 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.”

    While married girl children are given legal protection from marital rape owing to this ruling, the extant rape laws still do not recognise rape within the confines of marriage, unless the wife is underage. A series of petitions seeking to criminalise marital rape generally is currently pending before the top court. The Supreme Court is set to start hearing the petitions challenging the constitutional validity of the said exception from March 21.

    Case Title : Siddaruda @ Karna vs State of Karnataka

    Citation : 2023 LiveLaw (SC) 170

    For Appellant(s) Mr. Lakshmeesh S. Kamath, AOR Ms. Samriti Ahuja, Adv.

    For Respondent(s) Mr. V. N. Raghupathy, AOR Mr. Manendra Pal Gupta, Adv.

    Indian Penal Code 1860- Section 375- Exception 2- Sex with minor wife aged 16 years- Supreme Court acquits husband relying on exception 2 to Section 375 IPC [Offence took place in 2012 before the judgment in Independent Thought v. Union of India, (2017) 10 SCC 800 was passed, which had read '15 years' in Exception 2 as '18 years']

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    Tags
    Supreme Court of IndiaSupreme Court 2023Justice B R GavaiJustice Sanjay KarolIndian Penal Code 1860Marital RapeAge Of ConsentException 2 to Section 375 of the Indian Penal Code
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