New Delhi: The Supreme Court on Wednesday posed a query to the Centre how Parliament could create an exception in the penal law declaring that intercourse or a sexual act by a man with his wife, aged between 15 and less than 18 years, is not rape, when the age of consent is 18.
The apex court said it did not want to go into the aspect of marital rape, but when the age of consent was 18 years for "all purposes", why was such an exception made in the Indian Penal Code.
"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 the Parliament decided that we have fixed 18 years as the age of consent, can they carve out an exception like this," a bench of Justices Madan B Lokur and Deepak Gupta asked the Centre.
"When you (government) recognise the age of consent to be 18 years for all purposes, then why this exception," it asked.
Section 375 of the IPC, which defines the offence of rape, has an exception clause that says intercourse or sexual act by a man with his wife, not below 15 years, is not rape. However, the age of consent
Responding to the query, the Centre's counsel said if this exception under the IPC goes, then it would open up the arena of marital rape which does not exist in India.
"After due thought and consideration, Parliament decided to keep it (exception) intact," the counsel said while referring to some verdicts delivered by the high courts in which 15 years was held to be "acceptable" age for marriage.
He referred to the concept of age of puberty among Muslims for the purpose of marriage and said these aspects have been deliberated upon by Parliament before arriving at a conclusion.
During the hearing, the bench referred to the aspect of child marriage and said that despite there being a law which held it illegal, the practice was still going on.
The apex court observed that child marriage cannot go on like this just because this illegal practice was assumed to be legal and going on for ages.
"Whether or not it (child marriage) is a social reality, for 70 years we have not been able to remove it," the bench said.
When the Centre said child marriage was happening in several countries, the bench observed, "but that is not the justification".
The court also said there was a "conflict" between this exception under the IPC and under the provision of the Protection of Children from Sexual Offences Act (POCSO), 2012.
The bench, on hearing the submissions, reserved its judgement on the pleas questioning the validity of a provision permitting a man to have physical relationship with his wife, even if she was aged between 15 and 18 years.
The Centre had yesterday told the court that Parliament, in its wisdom, had taken a conscious decision to keep the age limit of voidable marriage between 15 and 18 years in case of girls.
It had said that the legislature kept in mind the socio- economic conditions in the country and was aware of international conventions while deciding to keep the voidable clause in case of child marriages.
One of the petitioners had argued that the exception to section 375 of the IPC was defeating the purpose of Prohibition of Child Marriage Act and was also in violation of international conventions to which India was a signatory.
The petitioners have sought a direction to declare exception 2 to Section 375 of IPC as "violative of Articles 14, 15 and 21 of the Constitution to the extent that it permits intrusive sexual intercourse with a girl child aged between 15 and 18 years, only on the ground that she has been married."
They have also referred to the provisions of the POCSO Act and said these were contrary to the IPC provision.