Summary
In a public-interest challenge confined to married girls below eighteen, the Court read down Exception 2 to Section 375 IPC so that a husband’s sexual acts with his wife below eighteen were not exempt from rape law. The concurring opinions relied on equality, dignity, bodily integrity and child-protection statutes. The judgment operated prospectively and left adult marital rape undecided.
Issues
- Whether the marital exception could exclude wives aged fifteen to eighteen from statutory rape protection.
- How the exception should be harmonised with POCSO and other child-protection laws.
- What temporal and procedural limits applied to relief.
Provisions considered
- Section 375, Exception 2, Indian Penal Code, 1860Read down to confine the spousal exception to wives not under eighteen, removing the exemption for child wives. (¶¶ Lokur105–106, Gupta87–90)
- Sections 3, 5(n), 42 and 42A, Protection of Children from Sexual Offences Act, 2012Child sexual protection contains no spousal exemption; the special Act prevails over inconsistent general law to that extent. (¶¶ Lokur45–49, Lokur96–98, Gupta23–26, Gupta79–80)
- Section 198(6), Code of Criminal Procedure, 1973The specified cognizance limitation for sexual intercourse with a wife under eighteen remains applicable. (¶¶ Gupta26, Gupta89)
Held
- Marriage does not remove a girl’s status as a child or supply legally valid sexual consent below eighteen. Differentiating married and unmarried girls in that age group lacked a rational justification and impaired equality, dignity, bodily integrity, health and reproductive choice. Tradition and prevalence of child marriage could not justify the discrimination. (¶¶ Lokur52–64, Lokur77–92, Gupta67–78)
- The IPC exception conflicted with POCSO protection, including aggravated penetrative sexual assault by a person related through marriage. Harmonious and purposive construction of child-protection laws required reading down the exception rather than reducing children’s protection. The offence already existed; removal of the inconsistent immunity did not create a new offence. (¶¶ Lokur93–105, Gupta79–85)
- The remedy raised the exception’s age threshold from fifteen to eighteen. The judgment had prospective effect, and cognizance of the specified spousal offences remained subject to Section 198(6), including its one-year limit from commission. (¶¶ Lokur105, Gupta88–89)
- The challenge was expressly confined to child wives. Neither opinion determined the broader question of marital rape involving wives aged eighteen or above; the child-marriage discussion did not itself declare every child marriage nationwide void ab initio. (¶¶ Lokur2, Lokur75–76, Lokur106, Gupta3–5, Gupta45–47, Gupta90)
Result
Directions issued reading down Exception 2 to Section 375 IPC to exclude wives below eighteen from its immunity, prospectively and subject to Section 198(6) CrPC; adult marital rape left open.