Marital rape is not a criminal offence

Frederick Owens
August 10, 2017

"Although there are inconsistencies in various laws but can we create an offence through judicial interference?", the apex court bench said.

The court was hearing a PIL filed by an NGO that sought direction to fix a legal age for a wife to have sex with husband.

"Parliament has extensively debated the issue of marital rape and considered that it was not an offence of rape".

The court's decision comes in the context of instances of girls in the age group of 15 to 18 being married off even though the incidence has declined in recent years.

It challenged constitutional validity of the amendment in Section 375 (rape) of the IPC, which makes an exception on age of consent of the wife for sex.

Marital rape can not be considered an offence if the wife is aged between 15 and 18 said the Supreme Court in its ruling on Wednesday that the forced intercourse and sexual acts can not be considered as a criminal act. Who is going to suffer? While the law on marriage recognises a 18-year-old girl as a major and its illegal for a girl below that age to marry, the IPC provision on the other hand supports child marriages, the petitioner said. The exception in Section 375, which was amended in 2013, does not consider sexual acts by a man with his own wife rape, provided the wife is not below 15 years.

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However, Section 375 (2) of IPC is against the provision of anti-rape and anti-sex trafficking legislations, such as Immoral Trafficking (Prevention) Act, the Protection of Children from Sexual Offences Act, 2012, because neither of the latter two legislations makes the distinction between married and unmarried minor girl children. "The Parliament has to protect the child", Agrawal stated.

"Without any renumeration we have submitted the report to the government and that too without any extension".

"Parliament can not impinge upon Article 21 by allowing the girl to marry under 18 years of age and allowing her to get pregnant or have intercourse. It was an exhaustive work", he said. "It has been considered pragmatically and every aspect was considered by the Parliament", she said, adding that keeping the child marriage prevalent in some societies it has been done.

After an NGO filed a petition seeking that the minimum age of consensual sex for a girl should be declared at 18 years, irrespective of whether she is married or not, the Centre defended Indian Penal Code's Section 375 Exception 2 saying that removing the provision would shake the institution of marriage in India. Tamta spoke about the socio-economic constraints in India.

Earlier, in 2015, the apex court made National Commission for Women party.

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