- The Supreme Court on Wednesday held that a man will be punished for rape if he is found to be guilty of havIng sexual intercourse with his minor wife.
- A Bench of Justices Madan B. Lokur and Deepak Gupta read down exception 2 to Section 375 (rape) of the Indian Penal Code (IPC).
- The exception clause to the heinous offence of rape allows a man to have sex with his wife who is not aged below 15.
Key Highlights of the hearings:
- With this verdict, the court has ended the disparity between this exception to Section 375, which allows a husband to have sexual relationship with his 15-year-old wife, and the definition of ‘child’ in recent laws such as the Protection of Children from Sexual Offences Act, 2012, which includes any person below the age of 18.
- The verdict also ends tacit acceptance of the exception clause in the IPC provided to child marriages, which was declared illegal and is a punishable offence, though a social reality especially in rural parts of the country.
- The court had agreed with NGO Independent Thought, which filed the petition challenging the exception, on how when sexual intercourse with a minor aged below 18 with or without her consent amounts to rape under IPC, it is not so once she is married.
- The NGO had argued that the exception was a violation of the fundamental right to life and equality of minors.
- The judgment, though the Bench had said time and again that it did not want to delve into the issue of marital rape, now inevitably opens a window for law on marital rape.
- The court had questioned the reason for Parliament to create an exception in the penal law declaring that sexual intercourse by a man with his minor wife is not rape.
- It had asked the reason behind such an exception in the IPC when the age of consent was 18 years for “all purposes”.
- “We do not want to go into the aspect of marital rape. That is for Parliament to see if they want to increase or decrease the age of consent. But once Parliament decided that we have fixed 18 years as the age of consent, can they carve out an exception like this had asked the Centre during the hearings.
- During the hearing, the Bench referred to the aspect of child marriage and said that despite there being law that held it illegal, the practice was still going on.
- “Whether or not it [child marriage] is a social reality, for 70 years we have not been able to remove it,” the Bench had observed.