A two-judge bench of the Supreme Court has ruled that sex between a man and his minor wife would constitute rape under the Indian Penal Code.
Justices Madan B Lokur and Deepak Gupta said today that the exception in Section 375, the law against rape in the IPC, is discriminatory, capricious and arbitrary. The exception states: "Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."
The court ruled that lowering the legal age for sex to 15 only because the minor was married violated the Constitution of India. "If a man has sexual intercourse with a wife who is below 18 years, it is an offence. The minor wife can complain against the husband within one year," the judges said.
"The exception in rape law under the IPC is contrary to other statutes, violates bodily integrity of girl child," they said.
Under Indian law, sex with a minor (below 18) is a crime. Until today, the only exception to the law was if the minor was a wife. The exception also ran contrary to the Protection of Children from Sexual Offences Act (POCSO) which criminalizes sex with minors as rape.
The judgment outlawing sex with a minor wife could have a significant impact on curtailing child marriages. The apex court also urged the Indian government to take more initiative in preventing child marriages in the country. The judges observed that social justice laws are not being implemented with the spirit in which they were enacted.
The Supreme Court clarified that it had not ruled on marital rape.
The ruling today was the result of a petition filed by Independent Thought, a Noida based NGO, which challenged the exception under Section 375 as being violative of fundamental rights enshrined in the Constitution.
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