The Supreme Court on Wednesday ruled that sex with a minor wife aged between 15 and 18 years would be considered a punishable offence under the Indian Penal Code (IPC), saying the exception in the rape law was arbitrary and was violative of the Constitution.
"If a man has sexual intercourse with a wife aged between 15 and 18 years, it is an offence. The minor wife can complain against the husband within one year," said the top court.
Section 375 of the IPC, which defines the offence of rape, has an exception clause that says intercourse or sexual act by a man with his wife, not below 15 years, is not rape.
However, the age of consent is 18 years. The apex court said the exception in the rape law was contrary to the philosophy of other statutes and violates the bodily integrity of a girl child.
A bench comprising Justice Madan B Lokur and Deepak Gupta also expressed concern over the prevalent practise of child marriage in the country and said social justice laws were not implemented with the spirit with which they have been enacted by Parliament.
The court was delivering a judgment on a plea challenging the validity of an exception clause in the rape law that permits intercourse or sexual act by a man with his wife, not below 15 years.
The bench clarified that it has not dealt with the issue of marital rape as it was not raised before it by respective parties.
Justice Gupta, who wrote a separate but concurrent verdict, said the age of marriage was 18 in all laws and the exception given in the rape law under the IPC is "capricious, arbitrary and violates the rights of a girl child".
The apex court said the exception is violative of Article 14, 15 and 21 of the Constitution.
It asked the Centre and the states to take proactive steps to prohibit child marriage across the country.
It voiced concern over thousands of minor girls being married in mass wedding ceremonies on the occasion of Akshaya Tritiya.
The bench had on September 6 reserved its order on the plea while questioning the Centre 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.
Earlier, 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).
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.
(With PTI inputs)
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