Sex with minor wife no rape? SC impleads NCW

New Delhi: The Supreme Court on Friday impleaded the National Commission for Women (NCW) as a party in the hearing of a petition that has challenged the constitutional validity of an exception in a rape law that says sexual intercourse with a wife not less than 15 years of age is not rape.

The public interest litigation (PIL) challenged the exception in Section 375 of the Indian Penal Code which says: "Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape."

Section 375 spells out six circumstances under which a man can be accused of committing a rape that includes sex without the consent of the woman or by putting her under some kind of pressure or fear.

However, it carves out an exception in case of a minor wife not less than 15 years.

While impleading the NCW as a party to the petition, the apex court social justice bench of Justice Madan B Lokur and Justice Uday Umesh Lalit told petitioner NGO Independent Thought: "You may be right that IPC will not override the statute."

Moved by the NGO's founding member Vikram Srivastava, the PIL contended that the exception was in conflict with the provisions of the Protection of Children from Sexual Offences (POCSO) Act.

Counsel for the PIL petitioner said the exception was also contrary to the Prohibition of Child Marriage Act.

The PIL contended that the exception was violative of Article 14 (equality before law), Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and Article 21 (Protection of life and personal liberty) of the Constitution to the extent that it permits intrusive sexual intercourse with a girl aged between 15 and 18 years on the ground that she has been married.

The petitioner NGO pointed to discrepancies in the law, referring to the provision of the Criminal Procedure Code (CrPC), which says: "No court shall take cognizance of an offence under Section 376 of the Indian Penal Code, where such offences consist of sexual intercourse by a man with his own wife, the wife being under 18 years of age, if more than one year has elapsed from the date of the commencement of the offence."

This made Justice Lalit wonder "cognisance" for what if you can't punish.

"You can't take cognizance of something that can't be punished," he said.

Admitting to the dichotomy in the statutory provisions and the exception, Additional Solicitor General Tushar Mehta told the bench that there were 23 million child brides in India and parliament, while making the exception, had this ground reality in view.