Sex with minor wife is rape, says Supreme Court in landmark judgement

In a landmark judgment, the Supreme Court on Wednesday said that sexual intercourse with a minor wife will amount to rape. The husband is liable to be prosecuted if the woman files a complaint within a year of the sexual act, the Supreme Court said.

In doing so, the apex court struck down an exception in Section 375 rape law which protected a husband who had sexual relations with his wife who is under 18 years of age.

"Exception 2 in Section 375 of IPC (Indian Penal Code) granting protection to husband is violative of constitution and fundamental rights of minor bride," the Supreme Court said, according to a report in The Times of India.

A bench of Justice Madan B Lokur and Justice Deepak Gupta -- in separate but concurring judgements -- said the exception was "arbitrary, discriminatory and capricious".

Justice Lokur said the exception has no rational nexus with the objective sought to be achieved by the different statutes.

Describing as artificial the distinction between minor girl and a minor girl in child marriage, Justice Lokur said it was contrary to the philosophy of many statutes like Prohibition of Child Marriage Act and Protection of Children from Sexual Offences Act.

The court also urged the Centre and the state governments to take proactive steps to discourage child marriages.

Justice Gupta said the exception carved out in Section 375 of the Indian Penal Code was violative of Article 14, ArticLe 15 and Article 21 of the Constitution.

The SC's order was drawn from the Child Marriage Prohibition Act. The apex court ruled that immunity could not be granted to a husband who is having sexual intercourse with his wife when she was aged between 15 and 18.

The order comes at a time when the apex court is already hearing petitions calling for marital rape to be declared crime and a debate over the age of consent.

The court, however, made it clear that it was not saying anything on the larger issue of marital rape even though the verdict would have a prospective affect on that.

A bench headed by Justice Madan B Lokur asked on September 6 how the Parliament could create an exception in Section 375, which constitutes the definition of rape, when the age of consent is 18.

This verdict, however, will not have a retrospective effect.

The SC was hearing a petition by Independent Thought, an NGO which has challenged the validity of the exception under Section 375.

The Centre had earlier defended this exception in the Supreme Court, stating that the provision was to "protect the institution of marriage".

With IANS inputs