The Supreme Court on Wednesday questioned the reason for Parliament to create an exception in the penal law declaring that sexual intercourse by a man with his minor wife is not rape.
The apex court asked the reason behind such an exception in the Indian Penal Code when the age of consent was 18 years for “all purposes.”
“We do not want to go into the aspect of marital rape. That is for Parliament to see if they want to increase or decrease the age of consent. But once Parliament decided that we have fixed 18 years as the age of consent, can they carve out an exception like this,” a Bench of Justices Madan B Lokur and Deepak Gupta asked the Centre.
“When you [the government] recognise the age of consent to be 18 for all purposes, then why this exception,” it asked.
Section 375 of the IPC, which defines the offence of rape, has an exception clause that says intercourse or sexual act by a man with his wife aged below 18 is not rape.
Responding to the query, government counsel submitted that the exemption was created after due thought and consideration by Parliament.
During the hearing, the Bench referred to the aspect of child marriage and said that despite there being a law which held it illegal, the practice was still going on.
“Whether or not it [child marriage] is a social reality, for 70 years we have not been able to remove it,” the Bench said.
The court said there was a conflict between this exception under the IPC and the Protection of Children from Sexual Offences Act (POCSO), 2012, which declares children below the age of 18 as minors.
The Bench reserved a petition filed by NGO Independent Thought seeking to strike down the IPC provision permitting a man to have physical relationship with his wife, even if she was aged between 15 and 18.