What Does Supreme Court’s Ruling on Sex With Minor Wife Mean?

Now on, if a man has sex with his underage wife – with or without her consent – it will amount to rape.

Exception 2 to Section 375 of the IPC has been read down to be harmonised with the POCSO Act and other pro-child legislations and laws seeking to protect the married Hindu girl child. 

(Photo: The Quint)

In a landmark verdict on 11 October, the Supreme Court held that sexual intercourse with a minor wife would, henceforth, be considered rape, provided a court took cognisance of the matter within a year of the commission of the offence.

The apex court said that Exception 2 to Section 375 of the Indian Penal Code (IPC) – which exempts sexual acts by a man with his wife aged between 15 and 18 years of age from the ambit of rape – is violative of Article 14, 15 and 21 of the Constitution.

The court ruled that the exception serves to create an artificial distinction between married and unmarried girls of that age group, and is both arbitrary and discriminatory.

In other words, as of today, if a man has sex with his wife who is below the age of 18, with or without her consent, it will be considered as rape.

How Did The Case Emerge?

Independent Thought, an NGO dealing with child rights, had filed a public interest litigation (PIL), challenging the soundness of Exception 2 to Section 375 (which defines rape) of the Indian Penal Code (as amended by the Criminal Law (Amendment) Act, 2013). The NGO’s legal counsel Gaurav Agarwal said that Exception 2 contravened Articles 14, 15 and 21 of the Indian Constitution.

There was dissonance between the existing rape law and the Protection of Children From Sexual Offences Act (POCSO) with regard to the age of consent.

While Section 375 of the IPC criminalises sexual intercourse with a girl below the age of 18, Exception 2 allows a man to have sex – both consensual and non-consensual – with his wife, who is above the age of 15. The POCSO Act set the age of consent at 18.

According to a PIL filed by the NGO, not reading down Exception 2 would mean advocating child marriage. Moreover, the exception also contradicted the Prohibition of Child Marriage Act, which sets the age of consent at 18.

Also Read: Marital Rape Ruling: Will Child Have Agency to Go Against Family?

What were the Key Arguments Submitted by the Petitioner?

The petitioner argued that Exception 2 created a dissonance between the existing rape law and the Protection of Children From Sexual Offences Act (POCSO) with regard to the age of consent. That is, Exception 2 went against the POCSO Act and allowed for a man to have non-consensual sex with his minor wife, without it amounting to rape. Thus, the girl child’s “right to bodily integrity” was taken away in such a case.

Secondly, the petitioner said that just because a girl aged between 15-18 was married didn’t automatically mean that she was no longer a child (mentally and physically) and could thus, give consent to or conduct conjugal relations.

Exception 2, therefore, was “discriminatory” and “arbitrary”, argued the petitioner. Moreover, the Exception went against the beneficial intent of the Constitution’s Article 15 (3), which allowed for special provisions for women and children.

Thirdly, the petitioner argued that if Exception 2 was read down, it would also harmonise this provision with the Child Marriage Restraint Act, 1929, which deems the marriage of a girl below the age of 18 as illegal. Drawing from the previous statement, the petitioner said that sexual intercourse with a girl below the age of 18 should also be criminalised.

Also Read: Are Men in India Culturally Superior to Women: HC on Marital Rape

Did the Government Oppose the Petition? Why or Why Not?

The respondent in this case, namely, the Union of India, said in its counter argument that our country not only has 23 million child brides, but that 46 percent of women in India in the age group 18-29 were married before attaining the age of 18.

Further, with regard to a solution to the malaise of child marriage, the respondent argued that Section 13(2)(iv) of the Hindu Marriage Act, 1955 allows a child bride to file a divorce petition, stating that she was married off before age 15, and has rejected that relationship before the age of 18.

In other words, the law states that the onus lies on the child bride or groom to declare the marriage “void”.

The respondent argued that the social realities of India are such that often children are married off by their respective families below attaining the age of 18, and are at an age where they are unable to comprehend the responsibilities and consequences of marriage.

It was also argued that in many cases, the husband is also a child groom, and may inadvertently be labelled a ‘rapist’ under the law. In order to check such perceived injustice, Exception 2 to Section 375 of the IPC was carved out.

Also Read: Child Marriage and Rape Laws: A Cultural Minefield?

Why Was the Exception to Section 375 Was Read Down?

The primary purpose of the petition by the NGO was to read down Exception 2 to Section 375 of the IPC, in order to harmonise it with it the POCSO Act and other child rights legislations, especially the human rights guaranteed to a married girl child.

Therefore, in reading down Exception 2, it can now be 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.”

Also Read: Marriage in India is “Sacred”, so Marital Rape Doesn’t Apply: Govt

What Is the Main Takeaway from the Judgment?

It was held by the Supreme Court in its verdict that regardless of a child’s status – surrendered, abandoned, married, separated, widowed or otherwise – a child remains a child. That is to say, a girl below the age of 18 is considered to be a child, who therefore, cannot, under any circumstance, give consent to sexual intercourse or sexual acts, especially since no statute has reduced the age of consent from 18.

Also, Exception 2 to Section 375 of the IPC was interpreted as creating an artificial distinction between married and unmarried girls, without any logic to support this distinction.

It was also put forth that this exception may encourage the breaching of The Prohibition of Child Marriage Act, 2006.

Conclusion

It should be noted that this case relates only to child marital rape, not marital rape as a whole. The judges took special care to note that this judgment would not affect the legal position on marital rape as a whole. The Delhi High Court is currently hearing a challenge against marital rape with respect to women of 18 years and above.

Also Read: Privacy a Fundamental Right: Now What Happens With Marital Rape?

Sources

1. http://supremecourtofindia.nic.in/supremecourt/2013/17790/17790_2013_Judgement_11-Oct-2017.pdf
2. https://barandbench.com/wp-content/uploads/2017/08/Child-Marital-Rape-Writ-Petition-1.pdf
3. https://barandbench.com/wp-content/uploads/2017/08/Child-Marital-Rape-Writ-Petition-1.pdf