Sexual intercourse with wife below 18 will amount to rape, says Supreme Court

The husband is liable to be prosecuted if the woman files a complaint within a year of the sexual act, the Supreme Court said.

Image used for representational purpose only. (File photo | AP)

NEW DELHI: The Supreme Court has ruled that sex with a minor wife — meaning a girl less than 18 years of age — is a crime. The judgment, delivered on the International Day of the Girl Child on Wednesday, has clarified that it does not want to delve into the issue of marital rape. But it may have opened a Pandora’s Box.

From now on, irrespective of religion, a marriage cannot be consummated if the wife is a minor.
The exception under Section 375 of the Indian Penal Code (IPC) has so far given immunity to a husband if the wife is above 15 and below 18 years of age.

But a bench of Justices Madan B Lokur and Deepak Gupta read down exception 2 to Section 375 (rape) of IPC. This clause allows a man to have sex with his wife who is not aged below 15. But now it states: “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 ruling has ended the disparity between this exception to Section 375, which allows a husband to have sexual relationship with his 15-year-old wife, and the definition of ‘child’ in recent laws such as the Protection of Children from Sexual Offences Act, 2012, which includes any person below the age of 18.
The judgment will act prospectively. This means that prosecution can be initiated on a complaint by the girl child or even by any other person at her instance within a year of the alleged offence.

The court said the present exception was contrary to Article 21 — which deals with the fundamental right to life — and also contradictory to the provisions of the Protection of Children from Sexual Offences Act under which the age of consent is 18.

In separate but concurring verdicts, the bench has made the age of consent for sex 18 years across the board, making it clear that “it cannot be said with any degree of rationality that such a girl child loses her status as a child in need of care and protection soon after she gets married.”

“Viewed from any perspective, there seems to be no reason to arbitrarily discriminate against a girl child who is married between 15 and 18 years of age. On the contrary, there is every reason to give a harmonious and purposive construction to the pro-child statutes to preserve and protect the human rights of the married girl child,” the judgment reads. Justice Lokur also stated that such marriages contribute to child trafficking.