The Supreme Court's path-breaking judgement criminalising sex by husband with his wife below the age of majority runs into 127-pages, but the two judges took just two paragraphs to clear the air as to what was in offing. The first two paragraphs of the first verdict, penned by Justice Madan B Lokur, gave a clear cut indication saying that "...in our opinion, sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not". Justice Deepak Gupta, who wrote a separate but concurring verdict, also opined on the same lines as Justice Lokur did. "The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved," Justice Lokur said. 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 that the "artificial distinction" was arbitrary and discriminatory and definitely not in the best interest of the girl child. "The artificial distinction is contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in international conventions. It is also contrary to the philosophy behind some statutes, the bodily integrity of the girl child and her reproductive choice," it said. "What is equally dreadful, the artificial distinction turns a blind eye to trafficking of the girl child and surely each one of us must discourage trafficking which is such a horrible social evil," the court said. The second paragraph of the judgement also clarified that the apex court has not made any observation with regard to marital rape of a woman, who is 18 years of age and above, as this issue was not raised before it.
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