Sex With Wife Aged Under 18 Years To Be Considered Rape: SC

Supreme Court on Wednesday said the exception in the rape law was unconstitutional

The Court stated that it did not want to go into the debate around marital rape and asked the Centre to consider the issue in Parliament.

The petitioner had sought the court's direction to declare the legal exception under the IPC as violative of Articles 14 (equality under law) and 21 (right to life) of the Constitution of India to the extent that it permits intrusive sexual intercourse with a girl child aged between 15 and 18 years, only on the ground of her being married.

The petition by NGO Independent Thought had challenged the exception clause (2) in Section 375 IPC (which deals with rape) that says intercourse or sexual act by a man with his wife, not below 15 years, is not rape.

Importantly, he pointed out the dichotomy between the impugned Exception under IPC and other statutes like Protection of Children from Sexual Offences Act, 2012 (POCSO), Prohibition of Child Marriage Act, 2006, Juvenile Justice (Care and Protection of Children) Act, 2000.

A Bench of Justices Madan B. Lokur and Deepak Gupta said the exception was "arbitrary, discriminatory and capricious".

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The order also comes at a time when the court is hearing petitions calling for marital rape to be declared a crime. The incidence of child marriage has been increasing in urban areas, perpetuated by a variety of factors, including poverty, a lack of education, and cultural norms.

The Supreme Court, in a landmark judgment, today said that sexual intercourse with a minor wife is rape. It is also estimated that there are 23 million child brides in the country. In India, legally, marital rape does not exist. However, the age of consent is 18 years. In the ruling, the Court also said that exempting married women aged between 15 and 18 from this rule is unconstitutional. If this is the object for increasing the age of consent to 18 years in 2013, then marriage of girl at the age of 15/16/17 years does not make the girl mature enough [mentally or physically] for the objective of consent.

At present, it is considered rape only if the wife is below 15 years.

But, the government had told the court that child marriage was a reality in India where economic and educational development was uneven. Immunity can not be allowed to a husband who is having sexual intercourse with his wife in this age group, said the court.

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