The Supreme court on Wednesday ruled that a man is committing rape if he engages in sexual intercourse with his wife who is aged between 15 and 18, a decision that will affect millions of child brides.
The legal age of consent is 18 years. The law regards even consensual sex with a woman under 16 as rape, but an exception had been made for intercourse between a man and his wife who is between 15 and 18.
Marital rape is not a crime in India, where the government has said criminalising marital rape could destabalise marriages and make men vulnerable to harassment by their wives.
The Supreme Court ruled the age of consent was 18 for ‘all purposes’ after hearing a petition by Independent Thought, a non-profit group that sought to criminalise sex with under-aged wives.
“Sexual intercourse by a married man with their minor wife below 18 years is rape,” the court said in its judgement, which was welcomed by women’s rights campaigners. “I am very happy with the Supreme Court judgement,” Vikram Srivastava, a lawyer for Independent Thought, said.
“The judgement gives a boost to the national campaign of ‘Beti bachao and beti padhao,’” he added, using a Hindi phrase meaning ‘Save the girl child and educate the girl child’.
The additional solicitor-general PS Narasimha, who represented the government, declined to comment. Wednesday’s verdict would not be applied retrospectively, however, said the court, which based its conclusions on India’s Child Marriage Prohibition Act.
A bench of Justice Madan B. Lokur and Justice Deepak Gupta – in separate but concurring judgements – said the exception was “arbitrary, discriminatory and capricious”.
Lokur said the exception has no rational nexus with the objective sought to be achieved by the different statutes. Describing as artificial the distinction between minor girl and a minor girl in child marriage, Lokur said it was contrary to the philosophy of many statutes like Prohibition of Child Marriage Act and Protection of Children from Sexual Offences Act.
The court also urged the federal and state governments to take proactive steps to discourage child marriages.