Marital rape exception and child protection: SC read down the IPC exception for wives below 18 years.

The SC held that the marital exception in Section 375 IPC could not validly apply to a married girl below 18 years. It found that child marriage does not imply consent to sexual intercourse, and that the distinction between married and unmarried girl children lacked rational basis and violated constitutional guarantees of equality, dignity and bodily autonomy. The Court also held that the IPC must be harmonised with child-protective statutes, including the POCSO Act and the Prohibition of Child Marriage Act, which treat every person below 18 as a child requiring protection. The exception was therefore read down so that intercourse with a wife below 18 remains punishable under the child-protection regime.

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Issues: (i) Whether Exception 2 to Section 375 of the Indian Penal Code, 1860, in so far as it applied to a married girl between 15 and 18 years of age, was arbitrary, discriminatory and unconstitutional; (ii) whether the said exception could be harmoniously construed with child-protective statutes so as to preserve the offence of rape in relation to a girl child below 18 years.

Issue (i): Whether Exception 2 to Section 375 of the Indian Penal Code, 1860, in so far as it applied to a married girl between 15 and 18 years of age, was arbitrary, discriminatory and unconstitutional.

Analysis: The age of consent under Section 375 of the Indian Penal Code, 1860 stood at 18 years, while child marriage was prohibited and treated as an offence under the Prohibition of Child Marriage Act, 2006. Exception 2 nevertheless carved out immunity for sexual intercourse by a husband with his wife if she was above 15 years of age. The Court held that a child remains a child irrespective of marriage, that consent for sexual intercourse cannot be presumed from child marriage, and that the classification between married and unmarried girl children had no rational nexus with any legitimate objective. The exception also created an unjustified distinction contrary to Article 14, Article 15(3) and Article 21 of the Constitution of India and ignored the bodily integrity and reproductive autonomy of the girl child.

Conclusion: Exception 2 to Section 375 of the Indian Penal Code, 1860 was held impermissible to the extent it applied to a married girl below 18 years of age and was read down so that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, would not be rape.

Issue (ii): Whether the said exception could be harmoniously construed with child-protective statutes so as to preserve the offence of rape in relation to a girl child below 18 years.

Analysis: The Court compared the Indian Penal Code, 1860 with the Protection of Children from Sexual Offences Act, 2012, the Juvenile Justice (Care and Protection of Children) Act, 2015 and the Prohibition of Child Marriage Act, 2006. It held that these are special child-protective enactments enacted in furtherance of Article 15(3), that the Protection of Children from Sexual Offences Act, 2012 overrides inconsistent law by virtue of Section 42-A, and that the statutory scheme uniformly treats a person below 18 years as a child needing protection. The exception in the Penal Code was therefore inconsistent with the child-protective statutory framework and had to be construed in a manner that preserves the protection afforded to the girl child.

Conclusion: The exception was harmonised with the child-protective statutes by reading it down, with the result that sexual intercourse with a wife below 18 years of age remained punishable under the child-protection regime and could not be treated as lawful merely by reason of marriage.

Final Conclusion: The challenge succeeded to the extent of reading down the marital exception for girl children, thereby aligning the penal law with the constitutional mandate of equality, dignity and child protection.

Ratio Decidendi: A child below 18 years cannot be taken to have consented to sexual intercourse by reason of marriage, and a statutory exception that immunises such intercourse without rational basis is unconstitutional and must yield to child-protective special legislation.

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