Child Marital Rape: Supreme Court reads down Exception 2 to Section 375

Child Marital Rape: Supreme Court reads down Exception 2 to Section 375

The Exception 2 in Section 375 of the IPC, which was ruled out by the Supreme Court, stated that sexual intercourse by a man with his own wife who is not aged below 15 did not constitute as rape.

While reading out the judgment, the court said the distinction that the law makes pertaining to age of consent between a married and an unmarried girl is artificial.

A bench of Justices Madan B Lokur and Deepak Gupta declared the exception to the rape law as "unfair, unjust, arbitrary and unconstitutional". According to government data, 46% of women in India between the ages of 18 and 29 years were married before the age of 18 years. She acknowledged that the decision might be hard to enforce because child marriage is widespread across large parts of India.

The court also noted in 1940, the age of consent (for sex) was 16 years, the age of marriage was 15 years and the age under the exception was also 15 years. That it hasn't stopped despite being made an offence - the 2011 Census showed five million girls were married before 18 - indicates how far we must go as a society to recognise the obvious threat posed to the health of the bride and her children. While the IPC said a man can have sex with his underage wife 15 or above, even without consent, POCSO prescribed the age of consent to be 18. However, the issue of marital rape of women over the age of 18 still hangs fire, and it is not the courts but the government that is to be blamed for inaction on this front.

The court's decision came on a PIL by NGO "Independent Thought" that stated nearly every statute in the country recognised that a girl below 18 years of age is a child but exception 2 to Section 375 allowed a husband to have sexual intercourse with his wife if she is between 15 and 18 years of age.

The court did not rule on marital rape, which is not illegal in India. First, that by virtue of marriage, the girl consented to sexual intercourse with her husband.

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They had also referred to the provisions of the POCSO Act and said these were contrary to the IPC provision. "From now on, a girl who is exploited can go to the police, can go to the justice system and say, I am being abused", she said.

While the verdict ends all such discrepancies and disparities, it also ends a "tacit acceptance" of child marriages because of Exception 2.

Many parents in India marry off their children in the hope of improving their financial security and to avoid the shame associated with pre-marital sex.

Today's judgment is just one of the many steps that the Supreme Court has taken to bring the laws into harmony.

Campaigners hailed the verdict as landmark, adding that it was particularly significant as people across the world celebrated International Day of the Girl Child.

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