Supreme Court: In order to harmonise Exception 2 to Section 375 IPC of the with the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), the spirit of other pro-child legislations and the human rights of a married girl child, the bench of Madan B. Lokur and Deepak Gupta, JJ held that the Exception 2 to Section 375 of the IPC to should now be meaningfully read as: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.” Both the judges wrote concurring but separate judgments.
Lokur, J, stating that holding sexual intercourse with a minor wife was the only way by which the intent of social justice to the married girl child and the constitutional vision of the framers of the Constitution could be preserved, said:
“Viewed from any perspective, there seems to be no reason to arbitrarily discriminate against a girl child who is married between 15 and 18 years of age. On the contrary, there is every reason to give a harmonious and purposive construction to the pro-child statutes to preserve and protect the human rights of the married girl child.”
Drawing an analogy between various laws land especially with POCSO Act, Lokur, J said that while the husband of a married girl child might not have committed rape for the purposes of the IPC but he would nevertheless have committed aggravated penetrative sexual assault for the purposes of the POCSO Act. He added that there is also no real distinction between the rape of a married girl child and aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act. He said:
“marital rape of a girl child is effectively nothing but aggravated penetrative sexual assault and there is no reason why it should not be punishable under the provisions of the IPC.”
Gupta, J, on the question that whether the Court was creating a new offence, explained that the Court was merely reading down Exception 2 to Section 375 IPC to bring it in consonance with the Constitution and POCSO since the offence already exists in the main part of Section 375 IPC as well as in Section 3 and 5 of POCSO. He said:
“this Court is not creating any new offence but only removing what was unconstitutional and offensive.”
He also noticed that Exception 2 to Section 375 IPC was the only provision in various penal laws which gave immunity to the husband. He said:
“The husband is not immune from prosecution as far as other offences are concerned. Therefore, if the husband beats a girl child and has forcible sexual intercourse with her, he may be charged for offences under Sections 323, 324, 325 IPC etc. but he cannot be charged with rape.”
He further added:
“It does not stand to reason that only for the offence of rape the husband should be granted such an immunity especially where the “victim wife” is aged below 18 years i.e. below the legal age of marriage and is also not legally capable of giving consent to have sexual intercourse.”
The Court, hence, held that Exception 2 to Section 375 IPC was arbitrary, capricious, whimsical and violative of Article 14, 15 and 21 of the Constitution of India. It was, however, made clear that the verdict will apply prospectively. [Independent Thought v. Union of India, 2017 SCC OnLine SC 1222, decided on 11.10.2017]
