The Indian Penal Code (IPC) is a legacy of the British Raj that was brought into force in 1860 to consolidate various penal statutes that were spread far and wide, owing to the diversity of the nation. The IPC was based on the prevalent customs and norms as it existed in those days. However, it has failed to keep up with evolution of society that has resulted in certain archaic and socially abhorrent provisions used till date.
Section 377, which criminalises homosexual intercourse, is one, another being 'Exception 2' to Section 375 which criminalises rape. The exception provides that sexual intercourse with minor wife who is of or above the age of 15 would not qualify as rape. This became specially contradictory to the amendment made to Section 375 in 2013 raising the age of consent from 16 years to 18 years.
The result of the amendment was that there was now a category of women between the ages of 15 to 18 who could not enjoy the protection of law if they were forced into sexual intercourse, without their consent, by their husbands. This legal position was challenged before the Supreme Court by a NGO named 'Independent Thought' for being unconstitutional by virtue of being arbitrary, discriminatory and devoid of dignity as it would render the same violative of the fundamental rights under Articles 14, 15 and 21 of the Constitution of India. The petitioner also contended that such women could not even give informed consent due to lack of maturity.
Interestingly, the judgment as authored by Justice Lokur did not find it viable to declare Exception 2 to Section 375 as being in violation of the fundamental rights under Articles 14, 15 and 21 as the Petitioner had given up this relief during the course of arguments.
Interestingly, both the UPA government in 2013 and the current NDA government chose to oppose the petition by stating that since child marriages were still prevalent in the country it would be difficult to criminalise marital rape of minor wives. The government shied away from disturbing the social order despite the same being a social ill. This gave rise to a peculiar situation where the Government was reluctant to cure an evil which necessitated the Supreme Court's intervention.
The government's ambivalence was rendered even more peculiar as there are specific statutes protecting children below 18 years from sexual offences, but the government failed to amend Section 375 to bring it line with such statutes. Further, by enacting the Prevention of Child Marriages Act, 2006 the Government had already criminalized child marriage where any man above the age of 18 years marrying a minor girl was punishable by rigorous imprisonment. However, such marriages were considered voidable at the choice of either of the parties, but not void at inception. Even this enactment did not bring about an amendment to Section 375.
Another dichotomy in the IPC, as noted by the Supreme Court, was that a man would be held liable for 'lesser offences' against his minor wife, like causing grievous hurt etc., but could not be held liable for marital rape of minor wife.
Taking note of the above, among various other factors, a bench comprising Justice Madan B. Lokur and Justice Deepak Gupta of the Supreme Court allowed the petition by striking down the exception as being unconstitutional and inconsistent with Protection of Children from Sexual Offences Act, 2012 (POCSO). This inconsistency should have been cured at the inception of POCSO in 2012 itself by way of amendment to section 375 but the failure of the legislature forced the Supreme Court to state the obvious.
The SC did refute the stand taken by the government during course of arguments that criminalising marital rape would destroy the institution of marriage.
The court sought to harmoniously interpret special statutes enacted for the protection of the girl child with the provisions of the Indian Penal Code. Such an interpretation was found to be important to preserve and protect the human rights of the girl child. Interestingly, the judgment as authored by Justice Lokur did not find it viable to declare Exception 2 to Section 375 as being in violation of the fundamental rights under Articles 14, 15 and 21 as the Petitioner had given up this relief during the course of arguments. Justice Lokur however harmonised the various child protection laws read down Exception 2 to Section 375 of the IPC to now be meaningfully read as: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape."
Justice Deepak Gupta, on the other hand, while concurring with the judgment authored by Justice Lokur declared that the Exception 2 to Section 375 of the Indian Penal Code was unconstitutional for being arbitrary and discriminatory and thus in violation of Articles 14 and 15 of the Constitution.
The Supreme Court refrained from giving any finding or opinion on marital rape of adult wife as the said issue was not in consideration in this case. However, it did refute the stand taken by the government during course of arguments that criminalising marital rape would destroy the institution of marriage. While this view has been taken in context of marital rape of girl child, the Petitioners before the Delhi High Court seeking criminalization of marital rape could use this to their advantage.
This judgment has been declared to be prospective in nature, which means that any prosecution for marital rape of girl child can only be initiated for such rape occurring after the date of the judgment, and no such act alleged to have occurred prior to the judgment can be treated as an offence.
Therefore the law as it stands now is that, notwithstanding consent, sexual intercourse with a minor girl would constitute the offence of rape under Section 375 of the IPC.