Landmark decision by Supreme Court bench declaring sex with a minor wife as rape

On Wednesday, the Supreme Court bench comprising of Justice Madan Lokur and Justice Deepak Gupta in the matter of Independent Thought v. Union of India, held that the act of a husband having sex with his wife in the age category of 15 to 18 years would qualify as rape under Section 375 of the Indian Penal Code. The bench read down the exception 2 to the rape provision given under Section 375 of the Indian Penal Code which previously held that husband having sex with a wife in this age bracket would not qualify as rape.  In what can be seen as a landmark judgment, with the court for the first time dealing with the issue of marital rape, it must be lauded as a step in the right direction.

NGO Independent Thought filed a petition in the Supreme Court, submitting the unconstitutionality of this exception under Section 375 of the IPC, which allowed for a husband to have sex with a child of 15 years despite the definition of ‘child’ given under Section 2(d) the Protection of Children from Sexual Offences Act, 2012, as “any person below the age of eighteen years.”

It was argued by the petitioners that the exception was violative the fundamental rights under Article 14, 15 and 21 of the Constitution of India. The Centre’s arguments heavily relied on protection of the institution of marriage, claiming the danger that arose in entering this domain of marital rape.

The Apex Court questioned the validity of this exception to the rape provision, where the age of consent has been set at 18 years for all other purposes, although it was held that the Parliament would decide on the larger issue of marital rape beyond the age of 18 years. However, one can conclude that the ground has been set for an amendment in this regard.

The Supreme Court bench also referred to the Prohibition of Child Marriage Act, 2006, to arrive at this conclusion. It was held that despite the statute the practice of child marriage was still prevalent in our society.