In 2013, Independent Thought, an organization working for the rights of women and children, filed W.P.(C) 382/2013 before the Supreme Court challenging Exception 2 to Section 375 of the IPC to the extent of its applicability in case of minor girls. The Exception, more commonly known as the Marital Rape exemption, states that a man cannot be charged with rape of his wife provided the wife is not below 15 years of age. The Child Rights Trust was brought on record as Intervenor in the case on 28.08.2017. Advocate Jayna Kothari, Executive Director of CLPR, appeared and argued on behalf of the Child Rights Trust.
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 a 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 child, i.e. below the age of 18 in case of girls and 21 in case of boys, is voidable and can be nullified at the instance of the contracting party who was a minor at the time of the marriage, on attaining majority at 18 years. There is therefore seen to be a statutory consensus on the legal age of consent being 18 years with anyone 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”. The prayer in the petition was for 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 it 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.
The case was heard substantially by the Bench and Advocate Jayna Kothari challenged the constitutionality of Exception 2 to Section 375 arguing that not only does it create an arbitrary classification between minor girls on the basis of their marital status, violating Article 14 of the Constitution, it exempts those who have been victims of forced or early marriages from any recourse to criminal law against forced sexual intercourse by their husbands. Thus, it deprives the girl child of her right to life, bodily integrity, and dignity under Article 21, particularly the right to privacy as recently upheld by the Supreme Court in Justice K.S. Puttaswamy vs Union of India which categorically records that privacy is a concomitant of dignity and every individual enjoys autonomy over their most personal and intimate decisions.
The Exception was also challenged as being a hindrance to the effective implementation of the Prohibition of Child Marriage Act by treating child marriages which are voidable in law at par with valid marriages, for the purpose of penal provisions dealing with rape. Lastly, treaty obligations under international legal framework on the subject like the CEDAW and the CRC which require States to eliminate all forms of violence and discrimination against women and children including sexual violence, were also invoked in support of the submissions to declare the Exception as unconstitutional to the extent of its applicability to minor girls.
The case was reserved for judgment on 06.09.2017 by the Supreme Court and the decision was delivered on 11.10.2017. In its judgment, the Supreme Court read down Exception 2 to Section 375 of the IPC, holding that the same will not apply in the case of minors. Accordingly, the Exception will now read: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape.”
Read detailed coverage of the case and the arguments here.