Sex with child bride is rape - SC alters exception, makes 18 cut-off

R. Balaji, TT, New Delhi, Oct. 11: Sexual intercourse between a husband and a wife who is aged below 18 amounts to rape, the Supreme Court ruled today, removing a loophole that allowed child marriage to thrive and provided immunity to men whose partners were as young as 15.

The judgment will have prospective effect, which means the rape charge will apply to child marriages that take place from now.

The apex court repeatedly clarified that it was not making "marital rape" an offence as it was not dealing with that specific issue. What the court did today was criminalise sexual intercourse between a husband and a wife who is not a major.

A secular law will prevail over others governing Hindu and Muslim marriages as far as children are concerned, the court added. 

The court altered a clause called Exception 2 to Section 375 (definition of rape) of the Indian Penal Code. Under Exception 2, sexual intercourse between a man and his wife if her age is above 15 was not considered rape although the age of consent is 18.

The Supreme Court changed the wording of Exception 2, which will now read: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape." Earlier, the clause stated that sexual intercourse by a man with his wife is not rape if she is not under 15 years of age.

A bench of Justices Madan B. Lokur and Deepak Gupta said in separate but concurring judgments: "In our opinion, sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child....

"It is also contrary to the philosophy behind some statutes, the bodily integrity of the girl child and her reproductive choice."

The verdict was delivered on a petition by the NGO Independent Thought challenging Exception 2.

The court made a reference to "an auspicious day - Akshaya Trutiya - when mass child marriages are performed.... Such young girls are subjected to sexual intercourse regardless of their health, their ability to bear children...."