Sex with wife below 18 years of age is rape, rules Supreme Court

The Supreme Court on Wednesday ruled that sex with wife aged between 15 and 18 years would be a punishable offence under the Indian Penal Code.

A public interest litigation was filed in the apex court seeking to allow a bride below 18 years of age to file an FIR if she’s forced to have physical relationship. The PIL had demanded that such acts should be treated as rape.

While delivering the judgement, the apex court bench comprising Justice Madan B Lokur and Deepak Gupta expressed concern over practice of child marriage, saying social justice laws had not been implemented with the spirit they were enacted.

Referring to the issue, the top court said "exceptions in rape law is discriminatory, capricious and arbitrary."

"The exception in rape law under the IPC is contrary to other statutes, violates bodily integrity of girl child," said the Supreme Court.

Justice Gupta, who wrote a separate but concurrent verdict, said the age of marriage was 18 in all laws and the exception given in the rape law under the IPC is "capricious, arbitrary and violates the rights of a girl child".

The apex court said the exception is violative of Article 14, 15 and 21 of the Constitution.

It asked the Centre and the states to take proactive steps to prohibit child marriage across the country.

It voiced concern over thousands of minor girls being married in mass wedding ceremonies on the occasion of Akshaya Tritiya.

The plea had challenged the validity of an exception clause in the rape law that permits intercourse or sexual act by a man with his wife, not below 15 years.

The court has clarified that the ruling is not in connection with the issue of marital rape.

Notably, on the issue of marital rape, the Central government has argued before the Supreme Court that criminalising marital rape could destabilise the institution of marriage and become an easy tool for harassing the husbands.

The Centre, in an affidavit filed in response to pleas seeking criminalising marital rape, had said the Supreme Court and various High Courts have already observed the growing misuse of section 498A (harassment caused to a married woman by her husband and in-laws) of IPC.

The court had earlier reserved the verdict while questioning the Centre how the Parliament could create an exception in 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 had also observed that child marriage cannot go on like this just because this illegal practice was assumed to be legal and has been going on for ages.

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."

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.

They have also referred to the provisions of the POCSO Act and said these were contrary to the IPC provision.

(With PTI inputs)