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Sex with wife below 18 is Rape, says Supreme Court

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NEW DELHI: Sex with a wife below 18 is rape, the Supreme Court said today, ending an exception in the law for men married to girls who are above 15 despite the ban on child marriage.

“If a man has sexual intercourse with a wife who is below 18 years, it is an offence. The minor wife can complain against the husband within one year,” said the court, declaring that lowering the legal age for sex to 15 if the girl is married is unconstitutional.

“Exception in rape law is discriminatory, capricious and arbitrary…It violates bodily integrity of the girl child,” said the court.

The judges made it clear they were not getting into the subject of marital rape.

Under the Indian Penal Code or IPC, a man having sex with a girl below 18 – with or without her consent – is defined as a crime. However, an exception is made if the girl is his wife and not below 15. The court today ruled that the exception is illegal and urged the government to prevent mass child marriages.

The petitioner in this case, Independent Thought, had flagged a conflict in the law for what constitutes rape.

The Protection of Children from Sexual Offences Act (POCSO) considers sex with children – defined as below 18 – as rape. The petitioner pointed out that a man, however, is not considered guilty of rape if he has sex with a child above 15 who happens to be his wife. This, when child marriage is illegal.

The Centre had defended the immunity to men having sex with wives above 15, saying it was meant to protect the institution of marriage. “The institution of marriage must be protected. Otherwise, the children from such marriages will suffer,” it said.

Some laws like the “exception provided for marital rape had been made taking into account the socio-economic realities of life in India” the government had said, adding that the court need not interfere, it would be a call for parliament to take.

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