The raging issue whether to make forced marital intercourse and sexual acts part of offence of rape in penal law has been extensively debated and now it cannot be considered as a criminal act, the Supreme Court has said.
Section 375 of the Indian Penal Code (IPC), which defines the offence of rape, has an exception clause that says the intercourse or sexual act by a man with his wife, not below 15 years, is not a rape.
The apex court, however, sought to know as to whether Parliament debated the aspect of protecting married girls, between the age group of 15-18 years, from the forced sexual acts by their spouses.
It also asked whether the court could intervene to protect the rights of such married girls who may be sexually exploited by their spouses.
"Parliament has extensively debated the issue of marital rape and considered that it was not an offence of rape. Therefore, it cannot be considered as a criminal offence," a bench of justices M B Lokur and Deepak Gupta said.
"There are cases when college-going teens, below 18 years of age, engage in sexual activities consensually and get booked under the law. Who is going to suffer? The boy is not at fault. The punishment of seven years is too harsh."
The apex court also said that marriage of a girl, who is below the age of 15 years, was "illegal".
"There are cases when college-going teens, below 18 years of age, engage in sexual activities consensually and get booked under the law. Who is going to suffer? The boy is not at fault. The punishment of seven years is too harsh," the bench observed.
It said, similarly, problem arises when a girl, under 18 years of age, elopes and engages in consensual sexual activity, the male gets booked for rape.
"In these cases, we do have problem if look at various aspects," the bench said as it asked the Centre to apprise it about the number of prosecutions under the Child Marriage Act for past three years in three weeks.
It also asked Centre to apprise it about appointment of the Child Marriage Prohibition Officers (CMPO) under statutory provisions in the country and posted the matter for hearing after four weeks.
The bench was hearing a plea questioning the constitutionality of a provision permitting a man to have physical relationship with his wife even if she is aged between 15 and 18.
The apex court said according to prevailing law, if a man has physical intercourse with a girl under 15 years of age, it is termed as rape irrespective of "consent or no consent" and if she is below 18 years of age, but more than 15 and married, then no offence of rape is made out.
Advocate Gaurav Agarwal appearing for NGO Independent Thought said that distinction made in between 18 and 15 is illegal and unconstitutional.
"Parliament cannot impinge upon Article 21 by allowing the girl to marry under 18 years of age and allowing her to get pregnant or have intercourse. The Parliament should have considered various reports of the United Nations," he said.
He said that a girl in the age group of 15-18 is not that physically developed and she is not capable of taking an informed decision or consent.
"The State has failed to protect her as there is no protection for her is she is below 18. Above 18 years of age she is developed and can think of coming out of abusive relationship," the lawyer said.
Senior advocate Gopal Subramaniam, who was part of the Justice J S Verma Committee constituted in the aftermath of the December 16 gangrape in Delhi and was present in the courtroom said, they had considered various aspects and after that, suggestion to criminalise marital rape was made.
The committee was headed by former Chief Justice J S Verma and comprised former judge Leila Seth and Subramaniam.
"Without any renumeration we have submitted the report to the government and that too without any extension. It was an exhaustive work," he said.
Advocate Binu Tamta appearing for Centre said that keeping the social and economic conditions of the country in mind, the Parliament has kept the age of 15 as threshold.
"It has been considered pragmatically and every aspect was considered by the Parliament," she said, adding that keeping the child marriage prevalent in some societies it has been done.
Earlier, the apex court had in 2015, made National Commission for Women (NCW) party to explain how the offence of rape in the Indian Penal Code (IPC) afforded an exception to a man to have physical relationship with his minor wife and still not qualify it as crime.
The NGO in its petition sought direction to declare exception 2 to Section 375 of the IPC as "violative of Articles 14, 15 and 21 of the Constitution to the extent that it permits intrusive sexual intercourse with a girl child aged between 15 and 18 years, only on the ground that she has been married."
It has also referred to the provisions of the Protection of Children from Sexual Offences Act (POCSO), 2012, and said these provisions were contrary to the IPC provision.
The POCSO provision provides that physical relationship with a minor constitutes the offence of rape and it does not exclude such relationship between a man and his minor wife.