The petitioner, being a society working for child rights filed a public interest litigation for the rights of married girls aged between fifteen and eighteen. The petitioners hold that since the age of consent in India for sexual acts is eighteen under Section 375 IPC, the same should hold for girls between fifteen and eighteen, irrespective of whether or not they are married.
Whether sexual intercourse between a husband and the wife, the wife being below eighteen can be considered to be rape?
Section 375 IPC, Protection of Children from Sexual Offences Act 2012
The Court observes that there is an artificial distinction created by the IPC 1860 and the POSCO, where the IPC does not punish sexual intercourse between a husband and wife, where the wife is above fifteen, whereas Section 5(n) of the POSCO punishes a husband for having sexual intercourse with his wife who is a child, and calls it aggravated penetrative sexual assault. The Court holds that there is no reasonable explanation for this artificial distinction. The court points out that Section 375 IPC, does not criminalize marital rape of a girl child between fifteen and eighteen even though she faces the same mental torture and agony as any child of that age. The court points that the statutory age fixed for consent for sexual intercourse is eighteen, and just by the virtue of marriage, a girl child does not become capable of giving consent. The Court also refused that a removal of this exception can ruin the institution of marriage, as the only thing that can impact the institution of marriage, as per the Court, is prohibiting marriage by enacting a law.
The Court held that Exception 2 of Section 375 should be amended and 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.” The Court restricted itself to marital rape of girls below eighteen and did not delve into the broader issue of marital rape.