Sex with underage wife is rape: Supreme Court ›

EXEMPTION STRUCK DOWN Complaint must be filed by wife within a year of marriage

Such a girl child has no recourse to law under the provisions of the IPC notwithstanding that the marital rape could degrade and humiliate her, destroy her entire psychology, pushing her into a deep emotional crisis and dwarf and destroy her whole personality and degrade her very soul SUPREME COURT BENCH

NEWDELHI: A man can be charged with rape if he has sex with his underage wife, the Supreme Court ruled on Wednesday, a landmark order that removed discrepancies in various statutory laws to fix the age of consent at 18.

The court was hearing a petition that sought scrapping of a provision in the rape law that allowed a man to have sex with his underage wife without her consent.

A bench of justices MB Lokur and Deepak Gupta said a girl child “cannot be treated as a commodity having no say over her body or someone who has no right to deny sexual intercourse to her husband”.

It ruled that a man can be prosecuted if his underage wife registers a complaint within a year of the offence.

The verdict is likely to be a deterrent against child marriage, which is illegal in India but common in poor communities where a girl is seen as a financial burden. “This would compel families of boys to think twice before getting their sons married to minor girls,” said advocate Gaurav Agarwal, the counsel for Independent Thought, an NGO on whose petition the court gave its judgment.

The order brought the rape law in harmony with all special legislation meant to protect children.

Rape and child marriage laws in India disagreed on the age of consent. Section 375 of the Indian Penal Code says sex with a girl below 18 is rape, but it makes an exception that allows a man to have sex with his underage wife, 15 or above, even without her consent.

The provision was contrary to the child marriage law that sets the legal age for matrimony at 21 for men and 18 for women.

The top court read down the exception, calling it arbitrary, whimsical and capricious.

“It violates the right to fair treatment of the girl child, who is unable to look after herself,” it said.