The raging issue whether to make forced marital intercourse and sexual acts part of offence of rape in penal law cannot be considered as a criminal act, the Supreme Court said.
Section 375 of the Indian Penal Code (IPC), which defines the offence of rape, has an exception clause that says the intercourse or sexual act by a man with his wife, not below 15 years, is not a rape.
The apex court, however, sought to know as to whether Parliament debated the aspect of protecting married girls, between the age group of 15 and 18 years, from the forced sexual acts by their spouses.
It also asked whether the court could intervene to protect the rights of such married girls who may be sexually exploited by their spouses.
“Parliament has extensively debated the issue of marital rape and considered that it was not an offence of rape. Therefore, it cannot be considered as a criminal offence,” a bench of justices M.B. Lokur and Deepak Gupta said. The apex court also said that marriage of a girl, who is below the age of 15 years, was “illegal”.
“There are cases when college-going teens, below 18 years of age, engage in sexual activities consensually and get booked under the law. Who is going to suffer? The boy is not at fault. The punishment of seven years is too harsh,” the bench observed.
Earlier, the apex court had in 2015, made National Commission for Women party to explain how the offence of rape in the IPC afforded an exception to a man to have the physical relationship with his minor wife and still not qualify it as the crime.
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