Delhi: Criminalising sex with a minor wife aged between 15 and 18 years, the Supreme Court of India Wednesday said that the exception in the rape law was arbitrary and was violative of the Constitution.
The exception in the rape law, SC said, was contrary to other statutes and violates ‘bodily integrity of a girl child’, Deccan chronicle reported.
SC ruled that Exception 2 to Section 375 of the Indian Penal Code, as it stands, is arbitrary and violative of Articles 14, 15 and 21 and not in consonance with the POCSO Act.
The apex court had earlier reserved the verdict while questioning the Centre how the Parliament could create an exception in law declaring that intercourse or a sexual act by a man with his wife, aged between 15 and less than 18 years, is not rape when the age of consent is 18.
Advocate Gaurav Agrawal had appeared for the petitioner NGO, Independent Thought.
The petitioners has pleaded that exception violates Article 14 of the Constitution.
According to barandbench.com, the exception classifies women into two categories based on their marital status but the said classification has no reasonable nexus to the object sought to be achieved.
“The said provision classifies girl children below the age of 18 years into two categories: (i) namely those who are married, and (ii) those who are not married. A husband can have sexual intercourse with his wife, if she is above the age of 15 years irrespective of her consent. However, for all other purposes the age of consent is 18 years. The Petitioner submits that this classification has no rational nexus with the object sought to be achieved.
The rationale for increasing the age of consent to 18 years in 2013 [from the earlier age of 16 years- which was the age of consent since 1940] is that a girl below the age of 18 years is considered incapable of realizing the consequences of her consent; she is treated as a minor under law and, therefore, mentally and physically not mature enough to give a valid consent.
Therefore, consent by a girl less than 18 years of age is no consent under law. If this is the object for increasing the age of consent to 18 years in 2013, then marriage of girl at the age of 15/16/17 years does not make the girl mature enough [mentally or physically] for the purpose of consent. Thus, the law is ex-facie discriminatory as the classification has no rational nexus with the object.”
