Section 375 of the Indian Penal Code, 1860, defines rape as a sexual intercourse either without the consent of a woman or with her consent which was obtained by either by putting her in fear, or when she was intoxicated or unsoundness of mind or if she is under the age of sixteen or is under the mistaken impression that the man is her husband. The exception to the section provides that sexual intercourse by a man with his wife does not amount to rape except when she is under the age of fifteen years.
The given exception created a lacuna in cases of minor wives who were between the ages of fifteen and eighteen years. If a man had sexual intercourse with his minor wife against her will, it did not constitute the offense of rape if she was above the age of fifteen years. The Supreme Court has recently increased the age of eighteen years for the wife, below which the man would be considered to have raped his wife, if he has sexual intercourse with her against her will and consent.
The Court has observed that all instances of sexual intercourse with a minor wife would constitute the offense of rape whether with or without her consent. A child does not lose her right to decline sex to her husband just because she is married. The order of the Apex Court is laudable as it can be a step in furtherance of preventing child marriages and may be a step towards declaring them void ab initio.
The given exception created a lacuna in cases of minor wives who were between the ages of fifteen and eighteen years. If a man had sexual intercourse with his minor wife against her will, it did not constitute the offense of rape if she was above the age of fifteen years. The Supreme Court has recently increased the age of eighteen years for the wife, below which the man would be considered to have raped his wife, if he has sexual intercourse with her against her will and consent.
The Court has observed that all instances of sexual intercourse with a minor wife would constitute the offense of rape whether with or without her consent. A child does not lose her right to decline sex to her husband just because she is married. The order of the Apex Court is laudable as it can be a step in furtherance of preventing child marriages and may be a step towards declaring them void ab initio.
