Know Your Law : India’s Apex Court Rules Intercourse with Minor wife is Rape

On October 11 2017, Honorable Supreme Court of India held that sex with minor wife despite consent will amount to heinous crime called “Rape”. This judgement is considered Landmark as it has solved the age old discrepancy in statutory laws between Exception 2 to Section 375 of Indian Penal Code and The Protection of Children from Sexual Offences (POCSO) Act. Before proceeding further with the opinion we need to understand what does exactly Exception 2 to Section 375 and POCSO states and from which statement does discrepancy arises. Section 375 of Indian Penal Code defines the offence of Rape has an exception clause that recites Intercourse or sexual act by a man with his wife, not below 15 years ,is not a rape. While POCSO and other sister acts together mention that age of consent is 18 years.

The NGO named The Independent Thought filed a PIL asking out for solving of this discrepancy and Advocate Gaurav Agarwal represented the Petitioner side while Government side was represented by their own lawyer. So, the case The Independent Thought Vs Union of India has come out during the time when Delhi High Court is dealing with cases related to Marital Rapes. While the Judges of The Independent Thought Vs Union of India refused to comment on Marital Rapes above the age of 18 years.

The Exception clause to Section 375 of Indian Penal code is inhuman as it differentiates between married child and unmarried child . So in a way going by the terms of exception clause an unmarried girl child has got all the rights of Bodily integrity, Mental integrity or may be social integrity but a married girl child has to be deprived of all rights that an unmarried girl child has. Why? Just because an unmarried girl child is happen to born in a family which doesn’t go for child marriages while married girl child is happen to born in a family that supports child marriage, keeping in mind child marriage is an offence but was voidable only at the option of one of the party and she has to do it until she reaches majority age i.e 20 years so as to make her marriage complete nullity. So basically in a way the laws made for Prohibition of Child Marriage is questionable in many contexts? In India a person gets the right to vote and many other rights except few at the age of 18 years and the reason is because this age is considered good as at this age child becomes adult and he or she can know what is good and bad for himself or herself , so how can you expect a child below 18 years to take a decision to go for marriage or consensual sex or go to court to keep forward the “voidable case” in her favor. Now this violates Article 14, 15 and 21 of Indian Constitution.

While the Government of India presented the argument on a different level. They argued that Court should not interfere in Exception Clause to Section 375 as it was made keeping in mind the age old traditions, rituals of various communities so child marriage cannot be completely washed away. Now going by their terms, traditions and rituals become more important in front of human life and human integrity. While on a philosophical context, these traditions , rituals were made by humans so unnecessary of them should be washed away by them as well. The Supreme Court of India pulled up Government of India for somehow trying to legitimize child marriage and sex with married girl child below 18 years of age. The Apex Court also thrashed Government for not being able to prohibit child marriages in society .

So, at the end Supreme Court of India held that if married girl below 18 years is forced to have intercourse with her husband , unlike earlier now he would be penalized. This judgment was welcomed by people of India. This judgment indeed has open door to cases of many grounds. Now it’s the time for Honorable Supreme Court of India to look into the matter of marital rapes that happen with women above the age of 18 years.

Written By – Ms. Muskan Nagpal

1 thought on “Know Your Law : India’s Apex Court Rules Intercourse with Minor wife is Rape

  1. Pragmatic&realistic perception is basic essential4 judiciary.Marriage is license 2 cohabitate.Making marriage with minor unlawful is enough,rather than tracking privacy zone of intercourse

Leave a Reply