Supreme Court Holds Marital Exception Will Not Apply where Wife Below 18

October 11, 2017

Delivering its verdict in Independent Thought vs. Union of India , a writ petition challenging  Exception 2 to Section 375 of the IPC, more commonly known as the marital rape exception, to the extent of its application in cases where the wife is between the ages of 15-18 as being contradictory to the law on age of consent and the provisions of the Prohibition of Child Marriage Act, 2006, a 2 Judge Bench comprising of Justice Madan B Lokur and Justice Deepak Gupta has held that the marital rape exemption will not apply where the wife is below the age of 18. Exception 2 to Section 375 of the IPC reads that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape . The Bench has read down Exception 375 of the Indian Penal Code to mean that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 of age, is not rape

Section 375 of the Indian Penal Code was amended by the Criminal Law Amendment Act, 2013 to raise the age of consent to 18 ( Section 375 Sixthly), bringing the law in consonance with all other statutes where  child is recognised to be a person below the age of 18, these being the Juvenile Justice (Care and Protection of Children) Act, 2012, the Protection of Children from Sexual Offences Act, 2012, and Prohibition of Child Marriage Act,2006.

Further, under the Prohibition of Child Marriage Act, 2006 a marriage contracted between two parties where either of them is a minor, i.e. below the age of 18 in case of girls and 21 in case of boys, is declared voidable and can be nullified at the instance of the contracting party who is a minor at the time of the marriage on attaining majority. There is therefore seen to be a statutory consensus on the legal age of consent being 18 years and any one below the said age being a child. However, under Exception 2 to Section 375 of the IPC, “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape”.

 In 2013, Independent Thought, a voluntary organisation involved with the issue of child rights approached the Supreme Court  seeking a declaration that Exception 2 to Section 375 of the Indian Penal Code violates Articles 14, 15 and 21 of the Constitution to the extent that fixes a lower age of consent and permits forced sexual intercourse by the husband with a girl who is between the ages of 15 to 18. Consequently, on 28.08.2017, an application for Intervention was filed on behalf of the Child Rights Trust, a non-governemnetal organisation working to secure Every Right for Every Child. Advocate Jayna Kothari, Executive Director of the Centre for Law & Policy Research  appeared and argued on behalf of the Child Rights Trust.

The case was reserved for judgment on 06.09.2017 by  the Supreme Court. A detailed coverage of the case and the arguments can be read here.

A Copy of the Judgment can be found here: Independent Thought Judgment