Sex with wife under 18 is rape

Supreme Court

Exception 2 to Section 375 of the IPC, 1860 answers this in the negative, but in our opinion sexual intercourse with a girl below 18 years of age is rape, regardless of whether she is married or not.

However the age of consent in the country is still 18 and marital rape isn't an offence, so married couples over 18 can not press rape charges on their spouse, according to the BBC.

Strangely, the Centre opposed the PIL and submitted that child marriage, though a crime, is a social reality in the country, home to 23 million child brides, with a high prevalence among Scheduled Castes (34.9 per cent), followed by Scheduled Tribes (31 per cent) and lower wealth index (44.1 per cent).

Thus, sexual intercourse between a man and his wife, only if the wife is not under 18 years of age, will be exempted from the purview of rape.

As per the data, 13 percent under-18 girls in Delhi were married which has come down from 22.7 percent recorded in 2005-06. "The exception clause to the heinous offence of rape allows a man to have sex with his wife who is not aged below 15", The Hindu reported. The court was responding to a petition that was specifically concerned with the "violation of the rights of girls who are married between the ages of 15 and 18 years".

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The Supreme Court on Wednesday voiced serious concern over mass child marriages, especially during the spring festival of Akshaya Tritiya and said the government should take proactive steps to prevent such weddings. The court must define the term "Minor Wife".

Rape is recognised as an offence against the very nature of consent as well as against the society under the Indian Penal Code. It was also argued that if one of the parties to the act is a conservative person and is not exposed to the various ways and systems of the world, mere reluctance would also be sufficient. In such case, it would be really hard to differentiate whether the no was a no or just a feeble n.o which could be assumed as a yes, the argument went on. "If a girl is not mentally and physically fit to give consent till she reaches 18 years, her marriage at age of 15 years or 16 years or 17 years does not change the situation". Stopping Child Marriages is the first step towards avoiding minor marital rape. Does a man having forced sex with his better half without her consent not destroy the institution of marriage already?

"If you do not criminalize sexual intercourse within marriage with a girl that is under 18, you're implying that the Prohibition of Child Marriage Act (PCMA) is not worth enforcing".

The court has definitely taken a historic decision, it even blamed the government saying that "What has the government of India done?" Therefore, it does appear that only a notional or linguistic distinction is sought to be made between rape and penetrative sexual assault and rape of a married girl child and aggravated penetrative sexual assault.

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