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Posted on 11.10.17 by

Child Marriage and Marital Rape Verdict: Marital Rape Exception in IPC not to apply where wife below 18.

A 2 Judge Bench of the Supreme Court delivering its verdict in Independent Thought vs. Union of India, on 11.10.2017 has held that Exception 2 to Section 375 of the Indian Penal Code, the provision that defines the offence of rape, which states that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape” must be read down and the age of consent must be read to 18 and not 15 for the purpose of the Exception. In effect, this would mean that Exception 2 would read Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape, thus making forced sexual intercourse by a man with his minor wife an offence under the rape laws of the IPC. 

In 2013, Independent Thought, a voluntary organisation involved with the issue of child rights approached the Supreme Court  seeking a declaration that Exception 2 to Section 375 of the Indian Penal Code violates Articles 14, 15 and 21 of the Constitution to the extent that fixes a lower age of consent and permits forced sexual intercourse by the husband with a girl who is between the ages of 15 to 18.  Further the exception was also challenged. Consequently, on 28.08.2017, an application for Intervention was filed on behalf of the Child Rights Trust, a non-governemnetal organisation working to secure Every Right for Every Child. Advocate Jayna Kothari, Executive Director of the Centre for Law & Policy Research  appeared and argued on behalf of the Child Rights Trust.

The challenge of the petitioner and the intervenor were based on the constitutional validity of the exception which it was argued was violative of Articles 14, 15 and 21 of the Constitution creating an arbitrary classification between married and unmarried minor girls for the purpose of sexual violence which bears no rational nexus to the object of the Section and is further contrary to the obligations of the state to protect the right of the child, both under Article 21 as well as under International Conventions to which India is a party.

Justice Madan B Lokur delivered his judgment noting the paramount importance of the issue at hand and the ill effects of child marriages. In a separate and concurring judgment, Justice Deepak Gupta has ruled that the exception was violates Article 14, 15 and 21 and the inconsistent with POCSO.

Copy of the Judgment
The arguments in the case have been covered in detail here.

 

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