Sex with minor wife is rape: SC

Victim has to lodge plaint against accused within 1 yr This verdict will protect all existing child marriages and have prospective effect as well.

In a landmark ruling on Wednesday, the Supreme Court held that in a child marriage, sexual intercourse between a man and his minor wife under the age of 18 is rape.

Delivering this ruling, a bench of Justices Madan B. Lokur and Deepak Gupta declared unconstitutional the Exception 2 to Section 375 of the Indian Penal Code, which gave protection to the husband from criminal prosecution.

The court said that immunity couldn’t be granted to a husband having sexual intercourse with his wife between the ages of 15 and 18.

This verdict will protect all existing child marriages and have prospective effect. The victim minor girl will have to lodge a complaint with the police against her husband within one year of the child marriage for the purposes of prosecution.

The court said this section is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable.

It was, therefore, inherently discriminatory and violative of Articles 14, 15 and 21 of the Constitution.

The bench, allowing a PIL filed by NGO ‘Independent Thought’ challenging Exception 2 to Section 375 IPC, said: “We make it clear we have refrained from making any observation with regard to the marital rape of a woman who is 18 years of age and above since that issue is not before us at all.”

The bench held that sexual intercourse with a girl below 18 is rape regardless of whether she is married or not.

The Supreme Court said Exception 2 carved out in Section 375 IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved.