The Supreme Court on Wednesday said sex with wife below 18 years of age is rape, striking down the provision of criminal law that permitted sex with a wife aged between 15 and 18.
Referring to the Exception 2 to Section 375 of the Indian Penal Code that allowed such a sexual contact which now stands struck down, the court in its verdict said, " ... in our opinion, sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not."
The husband is liable to be prosecuted if the woman files a complaint within a year of the sexual act, the Supreme Court said as it struck down the exception.
Describing the exception as "arbitrary, discriminatory and capricious", the bench of Justice Madan B. Lokur and Justice Deepak Gupta in their separate but concurring judgments said that its verdict would have a prospective affect.
Section 375, which defines rape, in Exception 2 said: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."
The court verdict came while deciding the question whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape, after NGO Independent Thought had moved the court in 2013 against it.
The court, however, made it clear that it was not saying anything on the larger issue of marital rape.
"We make it clear that we have not at all dealt with the larger issue of marital rape of adult women since that issue was not raised before us by the petitioner or the intervener," said Justice Lokur.
Describing the distinction between a girl child and a married girl child as "unnecessary and artificial", he said it "has no rational nexus with any unclear objective sought to be achieved".
Such an "arbitrary and discriminatory" distinction "is definitely not in the best interest of the girl child", he said, adding it was also contrary to the Constitution's Articles 15(3) and 21 and commitments in international conventions.
Holding this distinction was also "contrary to the philosophy behind some statutes, the bodily integrity of the girl child and her reproductive choice", he said it also "turns a blind eye to trafficking of the girl child and surely each one of us must discourage trafficking which is such a horrible social evil".
Justice Gupta in his separate but concurring judgment said that Exception 2 was "arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable" and thus was "violative of Article 14, 15 and 21 of the Constitution".
Exception 2 grants "immunity" to the husband for the offence of rape especially when the "victim wife" is below the age of 18 years - at an age when she is "legally not capable of giving consent to have sexual intercourse", he maintained.
Dismissing the Centre's stand that it would not be proper to criminalize the consummation of child marriages which were taking place in a large number across the country, Justice Gupta said: "Merely because something is going on for a long time is no ground to legitimise and legalise an activity which is per se illegal and a criminal offence."
He asked if a child marriage, which is admittedly "an evil" and also a criminal offence, can be "set up as an exception in a case of a girl child, who is subjected to sexual intercourse by her so called husband".
"Shockingly, even if this sexual intercourse is forcible and without the consent of the girl child, then also the husband is not liable for any offence," he said, pointing out several rights that a girl child loses including right to study and develop "physically, mentally and economically into a mature woman". "... in my view, because of the patriarchal nature of our society, some extra benefit must be showered upon the girl child to ensure that she is not deprived of her right to life..."
The court urged the Centre and the State governments to actively prohibit child marriages which "encourages" sexual intercourse with a girl child.
"Welfare schemes and catchy slogans are excellent for awareness campaigns but they must be backed up by focused implementation programmes, other positive and remedial action so that the pendulum swings in favour of the girl child who can then look forward to a better future," it said.
