(Image: Supreme Court of India website)

Sexual Intercourse With Wife Below 18 Years Of Age Is Rape, Says Supreme Court 

The Supreme Court, in a landmark judgement, criminalised sex with a minor wife aged between 15 and 18 years, saying the exception in the rape law was arbitrary and violative of the Constitution.

Section 375 of the Indian Penal Code, which defines the offence of rape, has an exception clause that says intercourse or any sexual act by a man with his wife, not below 15 years, is not rape. However, the age of consent is 18 years.

The apex court said the exception in the rape law was contrary to the philosophy of other statutes and violates the bodily integrity of a girl child.

Such an unnecessary and artificial distinction if accepted can again be introduced for other occasions for divorced children or separated children or widowed children.
Supreme Court Judgement

Watch KTS Tulsi, Senior Supreme Court Advocate discuss details of the Supreme Court order.

A bench comprising Justice Madan B Lokur and Deepak Gupta also expressed concern over the prevalent practices of child marriage in the country and said social justice laws were not implemented with the spirit with which they have been enacted by the Parliament.

The documentary material placed before us clearly suggests that an early marriage takes away the self esteem and confidence of a girl child and subjects her, in a sense, to sexual abuse. Under no circumstances can it be said that such a girl child lives a life of dignity. The right of a girl child to maintain her bodily integrity is effectively destroyed by a traditional practice sanctified by the IPC (Indian Penal Code).
Supreme Court Judgement

The top court also did not concur with the opinion that making sexual intercourse with minor wife illegal will destory the institution of marriage. In this regard the Supreme Court judgement said:

The view that marital rape of a girl child has the potential of destroying the institution of marriage cannot be accepted. Marriage is not institutional but personal – nothing can destroy the ‘institution’ of marriage except a statute that makes marriage illegal and punishable.
Supreme Court Judgement

Through its judgement, the court asked Centre and the states to take proactive steps to prevent child marriage across the country, while voicing concern over thousands of minor girls being married in mass wedding ceremonies on the occasion of Akshaya Tritiya.

The bench clarified that it has not dealt with the issue of marital rape as it was not raised by respective parties.

Justice Gupta, who wrote a separate but concurrent verdict, said the age of marriage is 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 court had earlier reserved the verdict while questioning the Centre on how 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.

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.

Watch Supreme Court Advocate Indira Jaising and Founder of NGO Independent Thought discuss the implications of the judgement.

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