Breaking: ‘Sex With a Minor Wife is Rape’, Supreme Court Rules

A two Judge Bench of Supreme Court held that sexual intercourse with minor wife is rape and a case can be registered against the Husband.

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.

Source: Live Law.in, 11 October 2017

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