SC Gives Its Verdict On Exception To Rape Law

SC Gives Its Verdict On Exception To Rape Law

SC Gives Its Verdict On Exception To Rape Law

Justice Gupta in his separate but concurring judgment said that Exception 2 was "arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable" and thus was "violative of Article 14, 15 and 21 of the Constitution".

The clause of the Indian Penal Code that allowed intercourse with married girls between 15 and 18 years was rendered irrelevant by POCSO Act before this decision.

The court said that though the civil society was doing its part to prevent such child marriages but eventually it is for the Centre and the state governments to take proactive steps to prevent child marriages, so that young girls can aspire to a better and healthier life.

A two-judge Bench unanimously made a decision to "read down" the above provision by inserting 18 years in place of 15 years, to make the Exception to IPC Section 375 read as, "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape".

The exception clause (2) under Section 375 IPC (which deals with rape) was challenged by NGO Independent Thought through a petition. If times and situations change, so must views, traditions and conventions especially when those days are long gone when a married woman or a married girl child could be treated as subordinate to her husband or at his beck and call or as his property. A husband can have sexual intercourse with his wife, if she is above the age of 15 years irrespective of her consent. This was rejected by the court, which held "there is no question of a girl child giving express or implied consent for sexual intercourse" based on the statutory age of consent. Such cases are also flooding the juvenile justice system where a boy below 18 years is invariably charged under the POCSO Act for eloping with his girlfriend and can be potentially be tried as an adult if he is above 16 years and is alleged to have committed penetrative or aggravated penetrative sexual assault. That is for Parliament to see if they want to increase or decrease the age of consent. "Thus, the law is ex-facie discriminatory as the classification has no rational nexus with the object".

"If all sexual acts by a man with his own wife qualify to be marital rape, then the judgment as to whether it is a marital rape or not will singularly rest with the wife", the court had observed.

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Supreme Court said the exception in the rape law was contrary to the philosophy of other statutes and violated the bodily integrity of a girl child.

Child marriage remains widespread in India, although the proportion of child marriages as a proportion of total marriages has fallen, from 47 percent in 2006 to 27 percent in 2016.

"All the said Acts regard a girl less than 18 years as a child".

But its criminal code had included an exception for married couples, in a country where around 46% of women aged between 18 and 29 were married before reaching legal adulthood.

By increasing the age limit from 15 to 18 and declaring sex with the wife under the age of 18 as rape is definitely a step in the right direction, but the journey is not complete yet. It has persuaded Parliament to convert what is otherwise universally accepted as a heinous crime into a legitimate activity for the objective of Section 375 of the IPC if the exploiter or abuser is the husband of the girl child.

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