Indian Penal Code

Introduction

On 11^th October 2017, a landmark judgment was pronounced by the Supreme Court in which the court held that the exception 2 of Section 375 of the Indian Penal Code, 1860 (IPC) is by itself an arbitrary and stated that a husband cannot have sexual intercourse with his wife if she is between 15 to 18 years of age even with her consent.

Facts

• The petitioner is a society registered in 2009 and work for the rights of child.
• The society has filed a petition under Article 32 of the Constitution of India, 1950 (COI) in the public interest to draw attention regarding the violation of a girl child who married between the ages of 15 and 18 years.
• Petitioner's contention was that the prescribe age of consent for sexual intercourse is 18 years under Section 375 of IPC.
• But if a girl child between 15 to 18 years is married, her husband can have sexual intercourse even without the consent of girl and without being penalized under the IPC.
• It was submitted that exception 2 to Section 375 of the IPC is not only arbitrary but is also discriminatory and contrary to the beneficial intent of Article 15(3) of the COI which enables Parliament to make special provision for women and children.

Issues Involved

• Whether sexual intercourse between a man and his wife being a girl between 15 to 18 years of age is rape?
• Whether exception 2 to Section 375 of IPC, in so far as it relates to girls aged 15 to 18 years, is unconstitutional and liable to be struck down?
• Whether exception 2 to Section 375 of IPC is discriminatory?

Observation

• The Supreme Court held that exception 2, in so far as it relates to the girl child below eighteen years, is unreasonable, unjust, unfair and violative of the rights of the girl child. To that extent the same is arbitrary and liable to be set aside.
• Also, exception 2 in so far as it relates to girls below 18 years is discriminatory and violative of Article 14 of the COI.
• There can be no doubt that by partly striking down Section 375 of IPC, no new offence is being created. The offence already exists in the main part of Section 375 of IPC and Section 3 and 5 of The Protection of Children from Sexual Offences Act, 2012 (POCSO).
• Since this Court has not dealt with the wider issue of “marital rape”, exception 2 to Section 375 of IPC should be read down to bring it within the four corners of law and make it consistent with the COI.
• Exception 2 to Section 375 IPC in so far as it relates to a girl child below 18 years is liable to be struck down on the following grounds: –
  • It is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Article 14, 15 and 21 of the COI.
  • It is discriminatory and inconsistent with the provisions of POCSO, which must prevail.

Conclusion

• In this case the Supreme Court struck down exception 2 to Section 375 of IPC and held that the provision is arbitrary since it is violative of the principles enshrined in Article 14, 15 and 21 of the COI.