Sex with wife under 18 is rape: Supreme Court

In a landmark verdict, India's top court has declared that sex with wife between 15 and 18 years of age will be considered rape and be a punishable offence under the Indian Penal Code (IPC).

The Supreme Court of India overturned an exception clause in the rape law that permits sexual intercourse between a man and his wife who is underage but above 15 years of age and said the law was "discriminatory, capricious and arbitrary."

The bench clarified that it has not dealt with the issue of marital rape as it was not raised before it by the parties.

Expressing concern over the practice of child marriage in the country, a bench comprising Justice Madan B Lokur and Deepak Gupta said social justice laws in the country had not been implemented with the spirit they have been enacted. 

Justice Gupta, who wrote a separate but concurrent verdict, said the age of marriage was 18 in all laws and the exception clause was "capricious, arbitrary and violates the rights of a girl child".

The exception in rape law under the IPC is contrary to the philosophy of other statutes, and violates bodily integrity of girl child, the Supreme Court said.

The apex court said the exception is violative of Article 14, 15 and 21 of the Constitution.

It asked the Centre and the states to take proactive steps to prohibit child marriage across the country.

It voiced concern over thousands of minor girls being married in mass wedding ceremonies on the occasion of Akshaya Tritiya.

The top court gave its verdict on a petition by an NGO, Independent Thought, challenging the validity of an exception clause (2) in Section 375 of the IPC that states that intercourse or sexual act by a man with his wife, not below 15 years, is not rape.

The petition contended that this created a dichotomy as the age of consent was 18 years and it also defeated the purpose of Prohibition of Child Marriage Act. 

The Protection of Children from Sexual Offences Act (POCSO) considers sex with children (those below 18 years of age) as rape.

The bench headed by Justice Madan B Lokur had on September 6 had reserved its order in the case.