Whether sexual intercourse between a man and his minor wife is rape?

Whether sexual intercourse between a man and his minor wife is rape? written by Avdhesh Parashar student of Maharashtra National Law University Aurangabad

INDEPENDENT THOUGHT v. UNION OF INDIA and ANOTHER (2017) 10 SCC 800; AIR 2017 SC 4904

FACTS OF THE CASE:

The Petitioner in the present Public Interest Litigation is a society registered on 6th August 2009 and provides technical and hand to hand support to non-governmental organizations and governmental organizations for child welfare. Society is also involved in legal research, social issues regarding children, and their rights.
The Petitioner approaches this Hon’ble Court under Article 32 of the Constitution of India with a view to draw attention to the violation of the rights of girls who are married between the ages of 15 and 18 years i.e., Marital Rape.
The Petition contains that according to Section 375 of Indian Penal Code, 1872 (hereinafter IPC) sexual intercourse with a girl below 18 years; with or without consent, is a statutory offense of Rape. Almost every statute recognizes a girl below 18 years as a minor/child. Unfortunately, Exception 2 of Section 375 of IPC says that if a girl child between 15 and 18 years of age is married, her husband can have non-consensual sexual intercourse with her, without being penalized under the IPC, only because she is married to him and for no other reason. It further contended that the right of a girl child is taken away by the provision and non-consensual sexual intercourse with her husband is not an offense under the IPC and it is in violation of Article 14, 15, and 21 of the Constitution of India.

ISSUE:

Whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape?

RULE OF LAW:

• Exception 2 of Section 375 of IPC, 1872
• Article 14, 15 and 21 of Constitution of India, 1950

OBSERVATIONS:

The petition was heard by a division bench consists of Justice Madan B Lokur and Justice Deepak Gupta.
The Madan B Lokur, J. concurred that Sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. Exception creates an unnecessary and artificial distinction between a married child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. An artificial distinction is arbitrary and discriminatory and is not in the best interest of the girl child. An artificial distinction is contrary to the philosophy and ethos of Article 15(3)1 of the Constitution and the commitments in international conventions. It is also contrary to the philosophy behind some statutes, bodily integrity of girl child and her reproductive choice.
Furthermore, Deepak Gupta, J. observed that Exception 2 of Section 375 IPC insofar as it relates to girl child below 18 years is liable to be struck down on the following grounds:
(i) It is arbitrary, capricious, whimsical and violative of rights of a girl child and not fair, just and reasonable and, therefore, violative of Articles 14,15 and 21 of Constitution of India;
(ii) It is discriminatory and violative of Article 14 of the Constitution of India;
(iii) It is inconsistent with provisions of POSCO, protection of children from sexual offenses which must prevail.

JUDGEMENT:

The division bench allowed the petition and struck down the Exception 2 of Section 375 of IPC, 1872 as being contrary to the Article 14,15 and 21 and other statutes and opined that it be read as “Sexual intercourse or sexual acts by a man with his wife, wife not being 18 years, is not rape”.