On 11th September 2017, the Supreme Court increased the age of consent for sexual intercourse within marriages to 18. Prior to the ruling, sexual acts by a husband on his wife, where the wife was above 15 years of age, did not constitute rape for the purpose of criminal law. This lead to a legal anomally as the age of consent is 18 years, both in the Indian Penal Code and various special statutes enacted for children, notably POCSO.
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 all other statutes where a child is recognised as a person below the age of 18 (Juvenile Justice (Care and Protection of Children) Act, 2012, the Protection of Children from Sexual Offences Act, 2012, and Prohibition of Child Marriage Act,2006). 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, is declared voidable. 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 to Section 375, which 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, has not been amended. This resulted 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 before the Supreme Court under Article 32 to declare the exception unconstitutional. Child Rights Trust, a non-governmental organisation working on prevention of child marriage, joined as an Intervenor and was also heard extensively.
The petition was listed for hearing before a Bench of Justices Madan B. Lokur and Deepak Gupta on 10.08.2017 on which date the Supreme Court 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 28.08.2017, an application for Intervention was filed on behalf of the Child Rights Trust, a non-governmental organisation working to secure Every Right for Every Child.
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 the right of the child under Article 21 as well as under International Conventions.
The Union of India first argued that it was for Parliament to rectify the anomaly created by the exception in Section 375. Secondly, the anomaly had been considered repeatedly by Parliament and a constructive thought process led to the conscious decision to retain the classification, bowing to social pressures and the State’s reluctance to interfere in marital life.
On 12th October 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.
Whether Exception 2 to Section 375 IPC violate Article 21 by keeping a lower age of consent for married girls?
Whether Exception 2 to Section 375 IPC violate Article 14 by discriminating between married and unmarried minor girls in the context of sexual violence?
Whether an exception in the IPC can be made to the age of consent universally fixed by the Parliament at 18 years for girls in all other statutes?