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The Supreme Court is likely to pronounce tomorrow its verdict on a plea challenging the validity of an exception clause in the rape law that permits intercourse or sexual act by a man with his wife, not below 15 years. 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. A bench headed by Justice Madan B Lokur had on September 6 reserved its order on the plea while questioning the Centre how Parliament could create an exception in law declaring that intercourse or a sexual act by a man with his wife, aged between 15 and less than 18 years, is not rape when the age of consent is 18. The apex court had said it did not want to go into the aspect of marital rape, but when the age of consent was 18 years for "all purposes", why was such an exception made in the Indian Penal Code (IPC). Responding to the query, the Centre's counsel had said if this exception under the IPC goes, then it would open up the arena of marital rape which does not exist in India. He had referred to the concept of age of puberty among Muslims for the purpose of marriage and said these aspects have been deliberated upon by Parliament before arriving at a conclusion. During the hearing, the apex court had observed that child marriage cannot go on like this just because this illegal practice was assumed to be legal and has been going on for ages. The petitioners have sought a direction to declare exception 2 to Section 375 of IPC as "violative of Articles 14, 15 and 21 of the Constitution to the extent that it permits intrusive sexual intercourse with a girl child aged between 15 and 18 years, only on the ground that she has been married." One of the petitioners had argued that the exception to section 375 of the IPC was defeating the purpose of Prohibition of Child Marriage Act and was also in violation of international conventions to which India was a signatory. They have also referred to the provisions of the POCSO Act and said these were contrary to the IPC provision.