Explained: What made SC rule that sex with minor wife is rape

In a historic order on Wednesday, on International Girl Child Day, the Supreme Court struck down the exception clause to rape provision in the Indian Penal Code and stated that sex with wife aged between 15 and 18 years would be considered as rape and will be treated as a punishable offence. The court, however, clearly stated that the order does not have any implication on marital rape as a decision over that needs to be taken by Parliament.

The SC gave the ruling in reply to a petition filed by NGO Independent Thought which had challenged the exception clause (2) under Section 375 IPC (which deals with rape) that says intercourse or sexual act by a man with his wife, not below 15 years, is not rape. Here are the arguments put forth by the petitioner in court:

- The main object of contention that the NGO stated in its plea was that there is a difference in the age of consent in this exception as opposed to the other laws. The petitioner stated that there is no rationale behind the said difference.

"The rationale for increasing the age of consent to 18 years in 2013 is that a girl below the age of 18 years is considered incapable of realizing the consequences of her consent; she is treated as a minor under law and, therefore, mentally and physically not mature enough to give a valid consent.

Therefore, consent by a girl less than 18 years of age is no consent under law. If this is the object for increasing the age of consent to 18 years in 2013, then marriage of girl at the age of 15/16/17 years does not make the girl mature enough [mentally or physically] for the purpose of consent. Thus, the law is ex-facie discriminatory as the classification has no rational nexus with the object."

- The petition also said that Parliament cannot allow the age of consent for sexual intercourse to be less than 18 as that would amount to the exploitation of girl child. "Simply because some marriages in India are being performed at an age lower than 18 years, it is not a justification to lower the age of consent to as low as 15 years," the petition states.

- Be it Protection of Children from Sexual Offences Act, 2012 (POCSO), Prohibition of Child Marriage Act, 2006 or Juvenile Justice (Care and Protection of Children) Act, 2000, all regard a girl less than 18 years as a child. So if a child between 15-18 years involves in sexual intercourse after marriage, it infringes upon her Fundamental Rights as a girl child. How can a girl who is not mentally and physically fit to give consent till she reaches 18 years, be considered capable of giving consent for sexual activities before the said age.

- The petitioner had also stated the harmful effects that an early pregnancy can have on the life of the young child.

(With inputs from Bar and Bench)