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The contrary views in separate reports of the Law Commission on whether to criminalise sexual activity between a man and his minor wife between 15 and 18 years of age, today found a mention in the Supreme Court's verdict. The bench noted that the Law Commission in its 84th report of 1980 took a view that sexual intercourse with a girl child below 18 years of age should be prohibited and made an offence. However, the commission in its 172th report of 2000 took a contrary view that an exception be added in the rape law provision that sexual intercourse by a man with his own wife, the wife not being under 16 years of age, is not sexual assault, a two judge bench headed by Justice M B Lokur said. Justice Deepak Gupta, who wrote a separate but concurring judgement, said Parliament knowingly took a decision not to criminalise sexual activity between a man and his minor wife. "However Parliament, while amending the IPC in the year 2014, in the wake of the 'Nirbhaya' incident, decided to increase the age of consent to 18 years under clause sixthly, but did not make any change in exception 2 of Section 375 IPC," Justice Gupta said. He also referred to Justice J S Verma Committee report in which it was not recommended that the age of consent should be increased under clause sixthly from 16 to 18 years, but it did recommend that exception 2 should be completely deleted and Parliament had taken note of the Verma Committee report. Section 375 of the IPC, which defines the offence of rape, has an exception clause that says intercourse or sexual act by a man with his wife, not below 15 years, is not rape.
However, the age of consent is 18 years. Justice Lokur said the recommendation of the law commission in its 172th report, apparently at the stage of discussion, did not find favour with an NGO called Sakshi which had suggested deletion of the exception. "In other words, according to the law commission, the husband of a girl child who is not below 16 years of age can sexually assault and even rape his wife and the assault or rape would not be punishable and if it is made punishable, then it would amount to excessive interference with the marital relationship," he noted.