Case Note & Summary
The writ petition under Article 32 of the Constitution was filed by Independent Thought, a child rights society, challenging Exception 2 to Section 375 of the Indian Penal Code, 1860, which decriminalised sexual intercourse by a husband with his wife aged between 15 and 18 years. The petitioner contended that while the IPC generally treats sexual intercourse with a girl below 18 years as rape (age of consent being 18), the exception created an arbitrary and discriminatory carve-out for married girls, violating fundamental rights under Articles 14, 15(3) and 21 of the Constitution. The Union of India opposed the petition, citing the National Family Health Survey and the Prohibition of Child Marriage Act, 2006, which provides a remedy of voidability rather than criminalising marital rape. The core legal issue was whether the exception was constitutionally valid. The petitioner argued that the marital status of a girl child does not rationally relate to any legitimate state objective, and that the exception perpetuated harm to child brides, including adverse health, educational, and social consequences, as shown by various reports. The court, after considering the Law Commission’s 84th and 172nd reports, noted the inconsistency between the age of consent and the age of marriage, and the legislative history of the exception. The court observed that the exception lacked any rational basis, was arbitrary, and discriminated against married girls by denying them protection against sexual abuse. It held that the exception violated the right to equality, the special protection mandate for women and children under Article 15(3), and the right to life and personal liberty including bodily integrity and reproductive choice under Article 21. The court further found that the exception contradicted India’s international obligations on child rights. The judgment declared Exception 2 to Section 375 IPC unconstitutional, with the effect that sexual intercourse with a wife below 18 years of age is rape. The court clarified that it was not expressing any opinion on marital rape of women aged 18 years and above.
Headnote
A) Constitutional Law – Violation of Fundamental Rights – Exception 2 to Section 375, Indian Penal Code, 1860 – Articles 14, 15(3) and 21, Constitution of India – The exception that permits marital sexual intercourse with a girl aged 15 to 18 years without being an offence is arbitrary and discriminatory; it creates an artificial distinction between married and unmarried girl children with no rational nexus to any legitimate objective and is contrary to the beneficial philosophy of Article 15(3) and the right to life and personal liberty under Article 21. Held that the exception is unconstitutional (Paras 1, 2, 5). B) Family Law – Child Marriage – Prohibition of Child Marriage Act, 2006; Child Marriage Restraint Act, 1929 – Section 3, PCMA; Section 13(2)(iv), Hindu Marriage Act, 1955 – The statutory prohibition on child marriage is undermined by the exception which effectively legitimises sexual intercourse with a child bride; the law cannot permit what it otherwise prohibits. The court observed that the exception turns a blind eye to trafficking of the girl child (Paras 6, 10, 11, 12). C) Human Rights – Bodily Integrity and Reproductive Choice – Article 21, Constitution of India – The right of a girl child to bodily integrity and to decline sexual intercourse with her husband is statutorily taken away by the exception; this violates her reproductive choice and autonomy. The exception is not in the best interest of the girl child (Paras 1, 2, 4). D) International Law – Conventions on Child Rights – The exception is contrary to India’s commitments under international conventions that define a child as any person below 18 years of age and prohibit child marriage. The court relied on reports and studies highlighting the adverse impact of child marriage (Paras 11, 12).
Issue of Consideration
Whether sexual intercourse between a man and his wife, the wife being a girl between 15 and 18 years of age, is rape under the Indian Penal Code, 1860?
Final Decision
The Supreme Court declared Exception 2 to Section 375 of the Indian Penal Code, 1860, unconstitutional. It held that sexual intercourse with a wife below 18 years of age is rape, regardless of consent or marriage. The exception was struck down as arbitrary, discriminatory, and violative of Articles 14, 15(3) and 21 of the Constitution. The court clarified that it did not express any view on marital rape of women aged 18 years and above.
Law Points
- Legal points not extracted
- sexual intercourse with a girl below 18 years of age is rape regardless of marriage
- exception 2 to Section 375 IPC is arbitrary and discriminatory
- no rational nexus with the objective sought to be achieved
- contrary to Article 15(3) and Article 21 of the Constitution
- violates bodily integrity and reproductive choice of girl child
- conflicts with prohibition of child marriage
- contrary to international conventions
