Asia & Australia

October 11, 2017

Exception 2 to Section 375, child marital rape, read down: SC


Supreme Court

On October 11, the Supreme Court ruled that Exception 2 to Section 375 of the Indian Penal Code, as it stands, is arbitrary and violative of Articles 14, 15 and 21 and not in consonance with the POCSO Act, in the Child Marriage Matter.

A Bench of Justices Madan B Lokur and Deepak Gupta proceeded to read down the lower age prescribed under the said exception from 15 to 18 that sexual intercourse between a man and his wife, only if the wife is not under 18 years of age, will be exempted from the purview of rape.

the Central and State governments were asked to take proactive steps to prevent child marriages, while making it clear that it has not gone into the larger issue of marital rape.

Exception 2 to Section 375 of the Indian Penal Code exempts marital rape of girls between the age of 15 and 18 from the purview of rape. In a petition filed by NGO Independent Thought, Advocate Gaurav Agarwal had appeared, while the judgement was passed.

One of the main arguments of the petitioner was that the challenged exception violates Article 14 of the Constitution, since it classifies women into two categories based on their marital status but the said classification has no reasonable nexus to the object sought to be achieved.

“The said provision classifies girl children below the age of 18 years into two categories: (i) namely those who are married, and (ii) those who are not married. A husband can have sexual intercourse with his wife, if she is above the age of 15 years irrespective of her consent. However, for all other purposes the age of consent is 18 years. The Petitioner submits that this classification has no rational nexus with the object sought to be achieved.

The rationale for increasing the age of consent to 18 years in 2013 [from the earlier age of 16 years- which was the age of consent since 1940] is that a girl below the age of 18 years is considered incapable of realizing the consequences of her consent; she is treated as a minor under law and, therefore, mentally and physically not mature enough to give a valid consent.

Therefore, consent by a girl less than 18 years of age is no consent under law. If this is the object for increasing the age of consent to 18 years in 2013, then marriage of girl at the age of 15/16/17 years does not make the girl mature enough [mentally or physically] for the purpose of consent. Thus, the law is ex-facie discriminatory as the classification has no rational nexus with the object.”

The petitioner also contended that the fact that age of consent is 18 years is indicative of the fact that Parliament considers girls below the age of 18 years as incapable of giving consent for sex.

“Therefore, simply because some marriages in India are being performed at an age lower than 18 years, it is not a justification to lower the age of consent to as low as 15 years. Parliament cannot permit the exploitation [in the name of marriage] of a girl child simply because some girls are married at an age less than 18 years.”

Significantly, he pointed out the difference between the challenged Exception under IPC and other statutes like Protection of Children from Sexual Offences Act, 2012 (POCSO), Prohibition of Child Marriage Act, 2006, Juvenile Justice (Care and Protection of Children) Act, 2000.

“All the said Acts regard a girl less than 18 years as a child. POCSO specifically bars all sexual activities with girl children below the age of 18 years and the offence is aggravated if the accused is related through marriage. In its attempt to protect status quo, Parliament has chosen not to increase the age of consent in case of a married girl from 15 to 18 years thereby impinging on the Fundamental Rights of the girl child. If a girl is not mentally and physically fit to give consent till she reaches 18 years, her marriage at age of 15 years or 16 years or 17 years does not change the situation.”

The petitioner had further submitted that pregnancy at a young age can cause adverse health effects on the girl and the child and is violative of Article 15 of the Constitution.

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