Minor Wife Rape | A performs sexual Intercourse with his wife aged 13 years. Has A committed any offence?

Question: Minor Wife Rape | A performs sexual Intercourse with his wife aged 13 years. Has A committed any offence? [R.J.S. 1999]

Find the answer to the mains question only on Legal Bites. Minor Wife Rape | [A performs sexual Intercourse with his wife aged 13 years. Has A committed any offence?]

Answer

In the landmark case of Independent Thought v. Union of India, 2017 SCC OnLine SC 1222, the Hon’ble Supreme Court has held that sexual intercourse with a minor wife will amount to rape if the case is filed against the husband within a year of offence.

Exception 2 to section 375 states that non-consensual sexual intercourse by a man with his own wife if she is over fifteen years, does not amount to rape. This exception is in anomaly to Clause (6) which provides that sexual intercourse with a woman under eighteen years of age will amount to rape, whether it is done with or without her consent.

This is because the consent of a minor is no consent. Once it is proved that the girl was below eighteen years of age, the question of her consent becomes wholly irrelevant and sexual intercourse with her amounts to rape irrespective of her consent.

The Court, hence, held that Exception 2 to Section 375 IPC was arbitrary, capricious, whimsical and violative of Article 14, 15 and 21 of the Constitution of India. It does not stand to reason that only for the offence of rape the husband should be granted such an immunity, especially where the “victim wife” is aged below 18 years i.e. below the legal age of marriage and is also not legally capable of giving consent to having sexual intercourse.

So, in the present case A has committed the offence of rape and will come under the purview of punishment for rape under section 376, IPC.

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