• A Landmark Decision by a Supreme Court Bench Declares Sex with a Minor Wife is Rape

    Ankita Ramgopal

    October 11, 2017

    On Wednesday, the Supreme Court bench comprising of Justice Madan Lokur and Justice Deepak Gupta in the matter of Independent Thought v. Union of India, held that the act of a husband having sex with his wife in the age category of 15 to 18 years would qualify as rape under Section 375 of the Indian Penal Code. The bench read down the exception 2 to the rape provision given under Section 375 of the Indian Penal Code which previously held that husband having sex with a wife in this age bracket would not qualify as rape.  This was the first time the court dealt with the issue of marital rape, and it is, without a doubt, a landmark judgement.

    The NGO Independent Thought filed a petition in the Supreme Court. They submitted the unconstitutionality of this exception under Section 375 of the IPC, which allowed for a husband to have sex with a child of 15 years despite the definition of ‘child’ given under Section 2(d) the Protection of Children from Sexual Offences Act, 2012, as “any person below the age of eighteen years.”

    It was argued by the petitioners that the exception violated the fundamental rights under Article 14, 15 and 21 of the Constitution of India. The Centre’s arguments heavily relied on protection of the institution of marriage. It claimed that there was danger in entering this domain of marital rape.

    The Apex Court questioned the validity of this exception to the rape provision, where the age of consent has been set at 18 years for all other purposes. The larger issue of marital rape beyond the age of 18 years would be decided by the Parliament. Nonetheless, one can conclude that the ground has been set for an amendment in this regard.

    The Supreme Court bench also referred to the Prohibition of Child Marriage Act, 2006, to arrive at this conclusion. It was held that, despite the statute the practice of child marriage was still prevalent in our society.

     

     

    First published in Lawyers' Collective

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