The petitioner is a society registered on 6th August, 2009 and has since been
working in the area of child rights. The society provides technical and
hand-holding support to non-governmental organizations as also to government and
multilateral bodies in several States in India. It has also been involved in
legal intervention, research and training on issues concerning children and
their rights. The society has filed a petition under Article 32 of the
Constitution in public interest with a view to draw attention to the violation
of the rights of girls who are married between the ages of 15 and 18 years.
According to the petitioner, Section 375 of the IPC prescribes the age of
consent for sexual intercourse as 18 years meaning thereby that any person
having sexual intercourse with a girl child below 18 years of age would be
statutorily guilty of rape even if the sexual activity was with her consent.
Almost every statute in India recognizes that a girl below 18 years of age is a
child and it is for this reason that the law penalizes sexual intercourse with a
girl who is below 18 years of age.
Unfortunately, by virtue of Exception 2 to Section 375 of the IPC, if a girl
child between 15 and 18 years of age is married, her husband can have
non-consensual sexual intercourse with her, without being penalized under the IPC,
only because she is married to him and for no other reason.
The right of such a girl child to bodily integrity and to decline to have sexual
intercourse with her husband has been statutorily taken away and non-consensual
sexual intercourse with her husband is not an offence under the IPC.
The issue before us is limited but one of considerable public importance:
- Whether sexual intercourse between a man and his wife being a girl
between 15 and 18 years of age is rape?
Merely because a girl child between 15 and 18 years of age is married does
not result in her ceasing to be a child or being mentally or physically
capable of having sexual intercourse or indulging in any other sexual
activity and conjugal relations.
- Whether exception 2 to Section 375 IPC is discriminatory?
The discrimination is between a consenting girl child, who is almost an
adult and non-consenting child bride.
- Is the court cresting a new offence?
One of the doubts raised was if this Court strikes down, partially or
fully, Exception 2 to Section 375 IPC, is the Court creating a new offence.
During the course of oral submissions, three substantive justifications were
given by learned counsel for the Union of India for making this distinction.
The first justification is that by virtue of getting married, the girl child has
consented to sexual intercourse with her husband either expressly or by
The second justification is that traditionally child marriages have been
performed in different parts of the country and therefore such traditions must
be respected and not destroyed.
The third justification is that several Members felt that marital rape has the
potential of destroying the institution of marriage.
The learned counsel for the petitioner submitted that absolutely nothing is
achieved by entitling the husband of a girl child between 15 and 18 years of age
to have non-consensual sexual intercourse with her.
Moreover, merely because a girl child between 15 and 18 years of age is married
does not result in her ceasing to be a child or being mentally or physically
capable of having sexual intercourse or indulging in any other sexual activity
and conjugal relations.
It was submitted that to this extent 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 Constitution which enables Parliament to make
special provision for women and children. In fact, by enacting Exception 2
to Section 375 of the IPC in the statute book, the girl child is placed at a
great disadvantage, contrary to the visionary and beneficent philosophy
propounded by Article 15(3) of the Constitution.
The stand of the Union of India may be summarised as follows:-
- “Economic and educational development in the country is still uneven and
child marriages are still taking place. It has been, therefore, decided to
retain the age of 15 years under Exception 2 of Section 375 of IPC so as to
give protection to husband and wife against criminalizing the sexual
activity between them.
- 46% of women between the ages 18-29 years in India were married before
the age of 18. It is also estimated that there are 23 million child
brides in the country. Hence, criminalizing the consummation of a marriage
union with a serious offence such as rape would not be appropriate and
- Providing punishment for child marriage with consent does not appear to
be appropriate in view of socio-economic conditions of the country. Thus,
the age prescribed in Exception 2 of Section 375 of IPC has been retained
considering the basic facts of the still evolving social norms and issues.
The result of the above situation is that the husband of a girl child
between 15 and 18 years of age has blanket liberty and freedom to have
non-consensual sexual intercourse with his wife and he would not be punishable
for rape under the IPC since such non-consensual sexual intercourse is not rape
for the purposes of Section 375 of the IPC.
Very strangely, the husband of a girl child does not have the liberty and
freedom under the IPC to commit a lesser ‘sexual’ act with his wife, as for
example, if the husband of a girl child assaults her with the intention of
outraging her modesty, he would be punishable under the provisions of Section
354 of the IPC. In other words, the IPC permits a man to have non-consensual
sexual intercourse with his wife if she is between 15 and 18 years of age but
not to molest her.
This leads to an anomalous and astounding situation where the husband can be
charged with lesser offences, but not with the more serious offence of rape.
This is extremely problematic, in the researcher’s point of view, and should be
dealt with adequately.
Also, merely because something is going on for a long time is no ground to
legitimise and legalise an activity which is per se illegal and a criminal
offence. The Parliament has decided in both the enactments that a girl below 18
years is not capable of giving consent to have sex and legally she cannot marry.
Parliament has also, in no uncertain terms, prohibited child marriage and come
to the conclusion that child marriage is an activity which must come to an end.
If that be so, can the practice of child marriage which is admittedly “an evil”.
Shockingly, even if this sexual intercourse is forcible and without the consent
of the girl child, the husband is not liable for any offence.
This law is definitely not right, just and fair and is, therefore, arbitrary.
Finally, it is well settled by a catena of judgments of this Court that the
“right to life” envisaged in Article 21 of the Constitution of India is not
merely a right to live an animal existence. This Court has repeatedly held that
right to life means a right to live with human dignity. In the case of a minor
girl child good health would mean her right to develop as a healthy woman. This
not only requires good physical health but also good mental health. The girl
child must not be deprived of her right of choice.
The State is entitled and empowered to fix the age of consent. The State can
make reasonable classification but while making any classification it must show.
In my view, as far as this case is concerned, this Court is not creating any new
offence but only removing what was unconstitutional and offensive.
 As per National Family Health Survey-III