This While marital rape itself is not “rape” under Indian law, and while child marriages are illegal; the impugned provision of the IPC granted liberty to the husband of a married minor girl to force her into intercourse irrespective of her consent, and still not be booked under ‘rape’. This anomaly created a grey area in the law of rape with respect to varying contexts and circumstances – consensual sexual intercourse with a minor is “rape” under the law; and child marriage is a punishable offence; but marital rape itself is not Rape; and if a man is married to minor girl, his forcible intercourse with her is exempted from being ‘rape’ just for this reason. This unfair and unjust provision was struck down by the Court in a landmark decision yesterday, wherein the Exception 2 to S.375 was taken down so that marriage to a minor does not give a silent consent to men to force their minor wives into intercourse. The Exception that now stands removed had caused an anomaly in the question of forced sex by husband with married girls between 15-18 years, since the lower limit stated in the Exception was 15years of age, while the age of minority in S.375 itself is 18. The POCSO Act, on the other hand, does not differentiate victims on the arbitrary basis of marriage. The Court’s verdict ended the decades-old disparity between Exception 2 to Section 375 IPC and other child protection laws.
The decision was delivered by Bench of Justices Madan B. Lokur and Deepak Gupta, who stated that “a child remains a child whether she is a married child or an unmarried child or a divorced child or a separated or widowed child.” The move is laudable as it goes a long way to ensure the protection of children, minimizing exploitation, and would have a great effect on curbing child marriages as well. The Court also stated that the provision “created an unnecessary and artificial distinction between a married girl child and an unmarried girl child” and “took away the right of a girl child to bodily integrity and reproductive choice”.
One major question that is still left unanswered is the issue of marital rape, as the Court refused to comment on the matter of forced sexual intercourse by husbands with wives above 18 years.