A non-government organisation – ‘Independent Thought’ has filed a Writ Petition (PIL) before the Supreme Court of India seeking a declaration that the ‘Exception 2’ to Section 375 of the Indian Penal Code, is violative of Articles 14, 15 and 21 of the Constitution of India to the extent that it permits intrusive sexual intercourse with a girl child aged between 15 to 18 years only on the ground that she has been married.
Section 375 of the Indian Penal Code defines the act of ‘rape’. However vide exception 2, it provides that the sexual intercourse or sexual acts by a man with his own wife, will not be recognised as rape if the wife is above 15 years of age. Thus the exception does not provide a recognition to marital rape as a crime. Further it also does not regard such acts with a woman above the age of fifteen as rape if she is the such concerned person’s wife though otherwise such acts with a woman below the age of 18 years is considered as rape even if committed with the consent of the woman.
Exception 2 provides:
Exception 2.–Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
||Writ Petition (C) No. 382 of 2013
||Independent Though v. Union of India
- Issue an appropriate writ, order or direction in the nature of certiorari or such other similar writ, in the nature of declaration,declaring that the provisions of Exception 2 to Section 375 of IPC, as amended by Criminal law (Amendment) Act, 2013 is unconstitutional and liable to be struck down.
- Issue an appropriate writ, order or direction in the nature of certiorari or a writ of declaration that the age of consent for sexual relationship should be treated as 18 years, irrespective of the marital status of the girl child.
Some of the grounds taken by the Petitioners are:
- Exception 2 to Section 375 of IPC, as amended by Criminal Law (Amendment) Act, 2013, is violative of Articles 14, 15 and 21 of the Constitution;
- The said provision discriminates between a girl child aged between 15 to 18 years and those above 18 years on the ground of marriage which has no rationale nexus to the purpose sought to be achieved;
- The age for grant of consent for sexual relationship has increased over a period of time from 10 years in 1860 to 16 years in 1940 and now the same has been increased to 18 years by way of Criminal Law(Amendment) Act, 2013. There is no justification whatsoever to maintain the age at 15 years only because the girl child is married. Thus, the provision is arbitrary and violates Article 14 of the Constitution.
- By virtue of provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 and provisions of Protection of Children from Sexual Offences Act, 2012, Parliament has recognized that a girl less than 18 years is a child and therefore, not in a physical and mental condition to take an informed decision as to sexual relationship. In such circumstances, there is no reason for Parliament to retain the age of 15 years in Exception 2 of Section 375 of IPC.
10 July 2013 – Notice issued
The matter was listed before a Supreme Court bench presided over by Justice K S Radhakrishnan. Appearing for iThought, Advocate Vikram Srivastav, submitted that if the age of adulthood has been fixed at 18 years, the same should apply in the case of age of consent of a women for sexual intercourse. After hearing the matter, bench issued notice to the Union of India and sought its response on the issue.
2 January 2014
Matter was listed before Justices K S Radhakrishna and AK Sikri. Appearing for the Union, Assistant Attorney General Paras Kuhad sought six weeks time to file the counter affidavit in the matter.
Matter was thereafter listed on a couple of occasions but nothing substantial took place then.
31 July 2015
Matter is listed before the social justice bench of the Supreme Court of India comprising of Justices Madan B Lokur and UU Lalit.