Constitutional Validity of Exception 2 to Section 375 IPC in Relation to Minor Wives

Independent Thought v. Union of India

(2017) 10 SCC 800

Case Summary

The Supreme Court, while allowing the writ petition, examined the constitutional validity of Exception 2 to Section 375 of the Indian Penal Code, 1860, and proceeded to read down the impugned provision.

Issue Before the Court

The limited issue before the Court was whether sexual intercourse between a man and his wife, where the wife is a girl between 15 and 18 years of age, amounts to rape under Section 375 IPC.
The Court clarified at the outset that it was not dealing with the question of marital rape of women who are 18 years of age and above.

Statutory Framework: Section 375 IPC

Section 375 IPC defines the offence of “rape”. The provision, in its present form, was introduced by way of amendment on 3 February 2013. Under this section, a man commits rape if he has sexual intercourse with a woman under any of the seven circumstances enumerated therein.

Clause “Sixthly” of Section 375 explicitly provides that sexual intercourse with a woman below 18 years of age constitutes rape, irrespective of her consent. This form of rape is commonly referred to as statutory rape, wherein the consent or willingness of a minor girl is rendered legally irrelevant.

Exception 2 to Section 375 IPC

Exception 2 to Section 375 IPC carves out an exception by stating that sexual intercourse by a man with his own wife, provided the wife is not below 15 years of age, is not rape. Consequently, if a wife is between 15 and 18 years of age, sexual intercourse by her husband is exempted from the offence of rape under the IPC, regardless of her consent or willingness.

However, sexual intercourse with a girl below 15 years of age is rape in all circumstances, whether consensual or non-consensual, and irrespective of whether the offender is her husband or any other person.

Three Legal Situations Emerging from Section 375 IPC

From a combined reading of Section 375 IPC and Exception 2, the Court identified three distinct legal situations:

1. Sexual intercourse with a girl below 18 years of age is rape (statutory rape), irrespective of consent.

2. By way of Exception, sexual intercourse with a wife between 15 and 18 years of age is not rape if committed by her husband, regardless of her willingness or consent.

3. Sexual intercourse with a woman above 18 years of age constitutes rape only if it falls under any of the seven circumstances enumerated in Section 375 IPC (i.e., non-consensual intercourse).

Consequence of the Legal Position

The combined effect of these provisions is that a husband of a girl child between 15 and 18 years of age enjoys absolute immunity from prosecution for rape under Section 375 IPC, even in cases of non-consensual sexual intercourse. Such conduct, though non-consensual, is legally excluded from the definition of rape solely by virtue of the marital relationship.