Exception to Rape within Child Marriages

Case Description

On 11th September 2017, the Supreme Court (SC) delivered two concurring opinions, raising the age of consent for marital sexual intercourse to 18:

• Opinion authored by Justice Madan Lokur
  Opinion authored by Justice Deepak Gupta

Section 375 of the Indian Penal Code was amended by the Criminal Law Amendment Act, 2013 to raise the age of consent to sexual intercourse to 18. This brought the law in consonance with provisions in all other statutes where a child is recognised as a person below the age of 18. Further, under the Prohibition of Child Marriage Act, 2006, a marriage contracted between two parties where one of them is a minor, i.e. below the age of 18 in case of girls and 21 in case of boys, can be declared void. It can be nullified by the person who was a minor at the time of the marriage, within two years of attaining majority.

However, Exception 2 of s 375 creates an exception to the offence of rape in cases of forced sexual intercourse by a man with his own wife if she is of 15 years of age or above. This has not been amended and results in an anomalous situation where forced sexual intercourse by a husband with a minor wife between the ages of 15 and 18 is permitted.

Independent Thought, a Non-Governmental Organisation, filed a writ petition urging the Supreme Court to declare the exception unconstitutional.

The petition was listed for hearing before a Bench of Justices Madan B. Lokur and Deepak Gupta on August 10th, 2017 on which date the Supreme Court (SC) sought recent data on the health and consequences status of girls married between the ages of 15-18 as well as the number of Child Marriage Prohibition Officers appointed under the Prohibition of Child Marriage Act, 2006. Consequently, on August 28th 2017, Child Rights Trust, a non-governmental organisation working on prevention of child marriage, joined as an Intervenor. They were also heard extensively.

Independent Thought and Child Rights Trust argued that the classification between married and unmarried minor girls in punishing sexual violence has no rational nexus to the objectives of the Section. It is also contrary to the obligations of the State to protect child rights under Article 21 and International Conventions.

The Union of India first argued that it was for Parliament to rectify the anomaly created by the Exception in Section 375. They further argued that the anomaly had been considered repeatedly by Parliament and a decision was made to retain the classification, bowing to social pressures and the State’s reluctance to interfere in marital life.

On October 12th 2017, the two-judge bench, through two concurring opinions, read down Exception 2 to Section 375 IPC and raised the age of consent to 18 for the purpose of the Exception. It also called for legal reforms to prevent and address violations of girls’ rights due to child marriage.