RAPE – SEX WITH MINOR WIFE
Independent Thought
v.
Union of India
AIR 2017 SC 4904: 2017 (12) SCALE 621:
2017 (10) SCC 800: 2018 Cri LJ 3541
Decided on: 11-10-2017
Hon’ble Judges: Madan B. Lokur and Deepak Gupta, JJ.
Facts: Petitioner-society filed petition under Article 32 of Constitution in public interest to draw attention to violation of rights of girls married between ages 15 and 18 years. Petitioner-society involved in legal intervention, research and training on issues concerning children and their rights. Almost every statute in India recognizes that girl below 18 years of age is child and law penalizes sexual intercourse with a girl below 18 years of age. By virtue of Exception 2 to section 375 of Indian Penal Code, unfortunately if a girl child between 15 and 18 years of age is married, her husband can have non-consensual intercourse with her without being penalized under Indian Penal Code, only because she is married to him and for no other reason.
Issue: Whether sexual intercourse with wife aged 15 years amounts to rape?
Held: Madan B. Lokur, J: Except to harmonize system of laws relating to children, no other option left and require Exception 2 to section 375 of Indian Penal Code to meaningfully read as “Sexual intercourse/acts by a man with his own wife, wife not being under 18 years of age, is not rape.” Only through this reading intent of social justice to married girl child and constitutional vision of framers of Constitution can be preserved and protected and given impetus.
Deepak Gupta, J. (Concurred View): Exception 2 in so far as it relates to girl below 18 years is discriminatory and violative of Article 14 of Constitution. This is invidious discrimination which is writ large when on one hand State by legislation laid down that abetting child marriage is criminal offence, it cannot, on other hand defend this classification of girls below 18 years on ground of sanctity of marriage because such classification has no nexus with object sought to be achieved.
Lastly, it was held that sex with minor wife is rape. The Supreme Court struck down exception 2 to section 375 of IPC. It was ruled that age of consent to be 18 as determined in Protection of Children from Sexual Offences (POCSO) Act cannot be reduced.
