Sex With Minor Wife Is Rape: Supreme Court, But Centre Tried To Legitimise Child Marriage

The Supreme Court on Wednesday held that sexual intercourse by a man with his wife, who is below 18 years of age, is rape.

“Human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance,” a Bench of Justices Madan B. Lokur and Deepak Gupta observed.

There were deliberations on striking down exception 2 to Section 375 (rape) of the IPC in the Ministry of Home Affairs (MHA) and the Women and Child Development (WCD) Ministry after an NGO Bachpan Bachao Andolan (BBA) moved the court.

The NGO, run by Nobel Prize winner Kailash Satyarthi, wanted the Supreme Court to examine the conflict of Section 375 IPC with Protection of Children from Sexual Offences (POCSO) Act, 2012 as the latter specifies that sexual intercourse with children aged below 18 amounted to rape.

However, the Union government wanted the Indian Penal Code Section (IPC) that allowed a man to have sex with his wife aged between 15 and 18 to stay.

Instead of attempting to effectively implement and enforce the anti-child marriage law, the government diluted it by creating artificial distinctions. The government had urged the court not to tinker with the exception clause as it was introduced keeping in view the age-old traditions and evolving social norms. The government had argued that the “practice of child marriage cannot be wished away and, therefore, the legislature in its wisdom has thought it fit not to criminalise the consummation of such child marriages”.

Countering this, the court said the exception clause “statutorily cancels a girl child’s right to decline sexual intercourse with her husband.”

The court, however, refrained from dealing with the issue of marital rape of a woman aged above 18.