NEW DELHI (TIP): The Supreme Court on Oct 11 held that sexual intercourse by a man with his wife, who is below 18 years of age, is rape.

A girl child below the age of 18 cannot be treated as a commodity having no say over her body or someone who has no right to deny sexual intercourse to her husband, the Supreme Court held.

“Human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance,” a Bench of Justices Madan B. Lokur and Deepak Gupta observed.

The two judges wrote separate judgments totalling 127 pages. The court read down Exception 2 to Section 375 (rape) of the Indian Penal Code (IPC), which allowed the husband of a girl child — between 15 and 18 years of age — blanket liberty and freedom to have non-consensual sexual intercourse with her. Her willingness or consent was of no concern. The husband in such cases was not punished for rape.

The exception had remained an anomaly because Section 375 itself mandated that sex with a girl below 18 years of age, with or without her consent, was statutory rape. An unmarried girl child can prosecute her rapist, but a married girl child aged between 15 and 18 could not even do that, Justice Lokur said, pointing out the injustice.

“A child remains a child whether she is described as a street child or a surrendered child or an abandoned child or an adopted child. Similarly, a child remains a child whether she is a married child or an unmarried child or a divorced child or a separated or widowed child. At this stage we are reminded of Shakespeare’s eternal view that a rose by any other name would smell as sweet — so also with the status of a child, despite any prefix,” Justice Lokur wrote.

The court, however, refrained from dealing with the issue of marital rape of a woman aged above 18.

With this judgment, considered by experts as trigger to declaring child marriage void ab initio, the court ended the decades-old disparity between Exception 2 to Section 375 IPC and other child protection laws.

These include the Prohibition of Child Marriage Act of 2006, Protection of Children from Sexual Offences Act and Juvenile Justice Act, all which define a “child” as someone who is below 18 years of age.

The court held that the exception clause to rape, carved out in the IPC, created an unnecessary and artificial distinction between a married girl child and an unmarried girl child. The clause took away the right of a girl child to bodily integrity and reproductive choice. It had even the effect of turning a blind eye to trafficking of the minor girl children in the guise of marriage.