Child Marital Rape: Petition Summary

Exception to Rape within Child Marriages

| 28th Jul 2021

The Petitioner, Independent Thought is an organisation working on the issues of child rights in India. They have filed a writ petition claiming that Exception 2 to Section 375 (the Exception) of the Indian Penal Code (IPC), 1860 is unconstitutional and liable to be struck down.

 

Section 375 of the IPC provides the definition and penalty for the rape of a woman. The provision states that it is rape, ‘with or without her consent, when she is under eighteen years of age.’ On the other hand, Exception 2 to this Section states that, ‘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 petition draws attention to discrimination against girl child who is married.

 

What does the petitioner seek?

The petitioner prayed for the Court to

 

  1. Declare the provisions of Exception 2 to Section 375 of IPC unconstitutional.

  1. Issue an order, writ or directive declaring the age of consent for sexual relationships must be treated as 18 years, irrespective of the marital status of the girl child.

Grounds

The Exception Violates the Rights to Equality, Against Discrimination and Life

The petitioner argues that the provision is discriminatory since it lowers the age of consent only because the girl is married, thus violating Article 14. Further, there is no rational reason for the age of consent to be higher for a girl child only because she is married. Exception 2 is arbitrary in setting the age of 15 years for marital rape.

 

The petitioner notes that the provision disregards her mental, physical and sexual health. Her fundamental rights to life and dignity are thus violated.

Contradicts Existing Laws on Rights of Minors

An individual below 18 years is considered a minor as per Justice Juvenile (Care and Protection of Children) Act, 2000 and Protection of Children from Sexual Offences Act, 2012. The marriage of any girl child below age of 18 is considered an offence as per the Prohibition of the Child Marriage, 2006.

 

The exception provided under s 375 IPC ignores these existing provisions, and carves out separate laws that govern married minor girls.