Intercourse with Minor Wife: a Rape

Rape law in India has evolved over a period of time and certain incidents have jolted the country. Initially in India intercourse with wife was never rape because marital rape is not acknowledged in India. But now, since Minors are considered not capable of giving consent in Criminal law, the logic is extended to this and intercourse with minors, with or without consent is rape. Read along to know more?

On October 11, 2017, the Honorable Supreme Court of India held that sex with minor wife despite consent will amount to a heinous crime called “Rape”. This judgment is considered Landmark as it has solved the age-old discrepancy in statutory laws between Exception 2 to Section 375 of the Indian Penal Code and The Protection of Children from Sexual Offences (POCSO) Act. Before proceeding further with the opinion we need to understand what does exactly Exception 2 to Section 375 and POCSO states and from which statement does discrepancy arises. Section 375 of the Indian Penal Code defines the offence of Rape has an exception clause that recites Intercourse or sexual act by a man with his wife, not below 15 years, is not rape. While POCSO and other sisters act together mention that the age of consent is 18 years. The focus is on intercourse with minor wife.

The NGO named The Independent Thought filed a PIL asking out for solving of this discrepancy and Advocate Gaurav Agarwal represented the Petitioner side while Government side was represented by their own lawyer. So, the case The Independent Thought Vs Union of India has come out during the time when Delhi High Court is dealing with cases related to Marital Rapes. While the Judges of The Independent Thought Vs Union of India refused to comment on Marital Rapes above the age of 18 years.

The Exception clause to Section 375 of Indian Penal code is inhuman as it differentiates between a married child and unmarried child. So in a way going by the terms of exception clause, an unmarried girl child has got all the rights of Bodily integrity, Mental integrity or maybe social integrity but a married girl child has to be deprived of all rights that an unmarried girl child has. Why? Just because an unmarried girl child happens to born in a family which doesn’t go for child marriages while married girl child happens to born in a family that supports child marriage, keeping in mind child marriage is an offence but was voidable only at the option of one of the party and she has to do it until she reaches majority age i.e 20 years so as to make her marriage complete nullity. So basically in a way, the laws made for Prohibition of Child Marriage is questionable in many contexts? In India a person gets the right to vote and many other rights except few at the age of 18 years and the reason is because this age is considered good as at this age child becomes adult and he or she can know what is good and bad for himself or herself, so how can you expect a child below 18 years to take a decision to go for marriage or consensual sex or go to court to keep forward the “voidable case” in her favor. Now, this violates Article 14, 15 and 21 of Indian Constitution.

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While the Government of India presented the argument on a different level. They argued that the Court should not interfere in Exception Clause to Section 375 as it was made keeping in mind the age-old traditions, rituals of various communities so child marriage cannot be completely washed away. Now going by their terms, traditions and rituals become more important in front of human life and human integrity. While on a philosophical context, these traditions, rituals were made by humans so unnecessary of them should be washed away by them as well. The Supreme Court of India pulled up Government of India for somehow trying to legitimize child marriage and sex with married girl child below 18 years of age. The Apex Court also thrashed Government for not being able to prohibit child marriages in society.

So, in the end, the Supreme Court of India held that if married girl below 18 years i.e. intercourse with minor wife is forced to have intercourse with her husband, unlike earlier now he would be penalized. This judgment was welcomed by the people of India. This judgment indeed has an open door to cases on many grounds. Now it’s the time for the Honorable Supreme Court of India to look into the matter of marital rapes that happen among women above the age of 18 years i.e. intercourse with minor wife.

Also read Marital rape: rape culture in India