Sex with minor wife is rape: SC

The Supreme Court on Wednesday held that a man's act of indulging in sex with a minor wife would amount to rape. In a landmark ruling, the top court read down exception 2 to Section 375 (rape) of the Indian Penal Code that allowed a man to have sexual relations with his wife above 15 years of age.

A bench of Justices Madan B Lokur and Deepak Gupta declared the exception to the rape law as “unfair, unjust, arbitrary and unconstitutional”. It gave purposive and harmonious constructions to the laws relating to children. The court, however, clarified that its judgement has nothing to do with 'marital rape'.

With the judgement, the court brought the penal law in conformity with the provisions of the Protection of Children from Sexual Offences Act, Juvenile Justice (Care and Protection of Children) Act, Prohibition of Child Marriage Act, Protection of Women from Domestic Violence Act

The court rejected the Union government's plea that since a large number of child marriages took place in the country, it would not be proper to criminalize the consummation of such matrimonial alliances.

“Merely because something is going on for a long time is no ground to legitimise and legalise an activity which is per se illegal and a criminal offence,” Justice Gupta said.

Justice Lokur noted there are about 23 million child brides in the country and the law termed those marriages voidable but not void, meaning thereby that it can be declared a nullity on a plea by either of the parties within two years of being an adult.

“An early marriage takes away the self-esteem and confidence of a girl child and subjects her, in a sense, to sexual abuse. Under no circumstances can it be said that such a girl child lives a life of dignity. The right of a girl child to maintain her bodily integrity is effectively destroyed by a traditional practice sanctified by the IPC,” he said.

The court's decision came on a PIL by NGO 'Independent Thought' that stated almost every statute in the country recognised that a girl below 18 years of age is a child but exception 2 to Section 375 allowed a husband to have sexual intercourse with his wife if she is between 15 and 18 years of age.

“There seems to be no reason to arbitrarily discriminate against a girl child who is married between 15 and 18 years of age. On the contrary, there is every reason to give a harmonious and purposive construction to the pro-child statutes to preserve and protect the human rights of the married girl child,” Justice Lokur said.

In his separate and concurring verdict, Justice Gupta said, “Law cannot be hidebound and static. It has to evolve and change with the needs of the society. Recognising these factors, the Parliament increased the minimum age for marriage. The Parliament also increased the minimum age of consent but the inaction in raising the age in Exception 2 is by itself an arbitrary non-exercise of power.”

The court also noted in 1940, the age of consent (for sex) was 16 years, the age of marriage was 15 years and the age under the exception was also 15 years. In 1975, the age of consent was 16 years, the age of marriage was 18 years, but the age under the exception remained 15 years. “That may have been there because there was no change in the age of consent. Now when the age of consent is changed to 18 years, the minimum age of marriage is also 18 years and, therefore, fixing a lower age under Exception 2 is totally irrational. It strikes against the concept of equality,” Justice Gupta said.