Police stop a child marriage in Purba Medinipur, West Bengal

The Indian supreme court has held that sexual intercourse with a girl below the age of 18 years will automatically qualify as rape, even if the woman is the wife of the accused.

At present, it is considered rape only if the wife is below 15 years.

The ruling, by a bench headed by Justice Madan B Lokur, came in a case that questioned the exemption given to such cases in India’s rape laws.

Section 375 of the IPC, which defines the offence of rape, has an exception for intercourse or sexual act by a man with his wife.

The plea questioned how Parliament could create an exception in law declaring that intercourse or a sexual act by a man with his wife, aged between 15 and less than 18 years, is not rape when the age of consent is 18.

The petition held that the exemption was “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.”

The apex court had said it did not want to go into the aspect of marital rape, but when the age of consent was 18 years for “all purposes”, why was such an exception made in the Indian Penal Code (IPC).

Responding to the query, the Centre’s counsel had said if this exception under the IPC goes, then it would open up the arena of marital rape which does not exist in India.

The government had opposed making such cases punishable under rape laws, pointing out that among Muslims, puberty was enough to qualify for marriage. It said such factors were kept in mind by Parliament before arriving at the law.

During the hearing, the apex court had observed that child marriage cannot go on like this just because this illegal practice was assumed to be legal and has been going on for ages.

The exception to section 375 of the IPC was defeating the purpose of Prohibition of Child Marriage Act and was also in violation of international conventions to which India was a signatory, the petition argued.

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