Delivering the decision in a writ petition challenging the constitutional validity of Exception 2 to Section 375 of the Indian Penal Code, 1860 (IPC) to the extent of its applicability in cases of minor girls, a two Judge Bench of the Supreme Court on Wednesday held that sexual intercourse by a man with his wife, the wife being below the age of 18 would amount to rape.

The Law under Challenge

Section 375 of the IPC is the provision defining with the offence of rape, enumerating the circumstances under which an act would amount to rape. However, under Exception 2 to the aforesaid section sexual intercourse or sexual acts by a man with his own wife would not amount to rape provided the wife is not below the age of 15. Exception 2 therefore, exempts a man for criminal liability for non-consensual sexual acts performed with a woman where the two are in a marital relationship, even in cases where the wife is a minor girl between the ages of 15-18.

Section 375 of the Indian Penal Code was amended by the Criminal Law Amendment Act, 2013 to raise the age of consent to 18 ( Section 375 Sixthly), bringing the law in consonance with all other statutes where child is recognised to be a person below the age of 18 and incapable of giving consent, these being the Juvenile Justice (Care and Protection of Children) Act, 2012, the Protection of Children from Sexual Offences Act, 2012, and Prohibition of Child Marriage Act, 2006. However, there was a conscious decision on part of the Parliament to not amend Exception 2 and retain the age of 15 mentioned therein.

The Challenge To the Exception

In view of the inconsistency within the section as well as the contradiction in law with the provisions of the Prohibition of Child Marriage Act, 2006 (PCMA), the Juvenile Justice Act, 2015 as well as the Protection of Children from Sexual Offences Act, 2012 (POCSO) wherein anyone below the age of 18 is defined to be a child incapable of giving consent.

Further, the constitutional validity of the Exception was challenged as being violative of Articles 14 & 15(3) on the premise that Exception 2 to section 375 arbitrarily discriminates between minor girls on the basis of their marital status and is not in consonance with the obligation of the State to enact beneficial legislation making special provisions for women and children. In denying minors who may have been victims of early and forced marriages recourse to criminal law in instances of sexual violence within the marriage, the Exception offends their bodily integrity and violates their Right to Life, Privacy, & Dignity under Article 21 of the Constitution. Additionally, reliance was placed on the International Legal Framework on the rights of the child.

The Argument of  the Central Government before the court was that the parliament has consciously fixed the age at 15 recognising societal needs and practices, submitting that even after the coming into force of the PCMA, child marriages continue to be prevalent, particularly in rural and tribal areas and criminalising sexual activity within such marriages would destroy the institution of marriage.

The Decision of the Court

Noting that child marriage is an abhorrent practice that severely impacts the health and well being of children, the consequences being greater for the girl child who are more vulnerable to physical and sexual violence at the hands of the family and the partner, the apex court has observed that a girl below the age of 18 does not cease to be a child in the eyes of law simply because she has been married at an early age.

Furthermore, rape under Section 375 of the IPC is defined in a similar manner as that of aggravated sexual assault under the POCSO Act, with the same punishment being prescribed for the two offences under the respective statutes and a man does not enjoy immunity under the latter which is a special law enacted towards fulfilling the obligation on part of the State to make special provisions for women and children in order to secure the best interests of the child. Therefore, the failure of the Legislature to address the conflict between the two provisions has resulted in grant of legal sanction to an act otherwise considered as a heinous crime and created an arbitrary distinction between married and unmarried minor girls, one that has no reasonable nexus with any object sought to be achieved.

Voicing their lack of appreciation for the justification offered by the government for retaining 15 as the age of consent under Exception 2 to Section 375, the same being child marriages being a common practice, the bench has held that under no circumstances can it be assumed that a girl child otherwise incapable of consenting to sexual acts can be said to have implied the same simply on account of being married.

Further, child marriage although prevalent cannot be defended and is a social evil that must be eliminated, for it compromises the reproductive autonomy and bodily integrity of a girl child who may be forced into early sexual intercourse and the consequent pregnancy which will be detrimental to her physical health and well being. Sexual violence at an early age further hampers the development of a girl and the denies her the right to a dignified life by eroding her confidence and having severe adverse consequences on her mental health.

The Prohibition of Child Marriage Act, 2006 is a secular law and must override all personal laws, all attempts being made to secure the objective the enactment aims to achieve. However, there are limitations on the extent to which civil society can combat the evil and it is by way of legislation alone that concrete steps can be taken in this direction. In this regard, the court has cited the amendments made by the State of Karnataka to the PCMA as a model for other states, wherein Section 3 of the Act has been amended to declare all marriages contracted where either party is a child, i.e. a boy below the age of 21 or a girl below the age of 18, to be void in law, thereby meaning that no legal relationship of husband wife subsists and immunity for sexual acts would not be available to a man.

Providing a harmonious and purposive interpretation to all statutes relating to the rights of child, the bench has adopted an approach that best secures the interest of the girl child and further protects her fundamental right to liberty, equality, and dignity, the bench has held that Exception 2 to Section 375 of the IPC must be read down to read that “Sexual intercourse and sexual acts by a man with his own wife, the wife not being under the age of 18, is rape.”

Interestingly, although the court has categorically stated that it is not dealing with the larger issue of marital rape, Justice Madan B Lokur has held that “Constitutionally, a female has equal rights as a male and any theory that propounds a constitutional myth to the contrary must be demolished.” The issue of criminalisation of marital rape is pending before the High Court of Delhi and it will be interesting to what extent the decision of the Supreme Court has a bearing on the outcome in that case.

A detailed coverage of the arguments and verdict in the said case is available here.


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