A bench of Justices Madan B Lokur and Deepak Gupta read down this exception arguing that it was inconsistent with other statutes dealing with children such as The Prohibition of Prevention of Child Marriage Act (PCMA), Juvenile Justice Act and The Protection of Children from Sexual Offences (POCSO) Act all these have fixed the minimum age of the girl child for sexual relations at eighteen. Lawyers in marital rape case see glimmer of hope in Supreme Court order on sex with child wife.

“…In our opinion, sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not,” the court said adding : “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. The artificial distinction is discriminatory and is definitely not in the interest of the girl child.”

It was also “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…and to the philosophy behind some statutes, the bodily integrity of the girl child and her reproductive choice,” the judgment said adding it was “dreadful” that it also “turns a blind eye to trafficking of the girl child..which is such a horrible social evil”.

The court was hearing a petition by Delhi-based child rights NGO Independent Thought.

The bench, however, clarified that it was not making any observation on “marital rape” of a woman who is 18 years of age and above as the issue was not before the court.

The question whether marital rape should be criminalised is pending before the Delhi High Court where the Centre has filed an affidavit opposing this saying that doing so may destabilise the institution of marriage apart from being an easy tool for harassing husbands.

Today’s judgment also referred to the counter affidavit of the Government of India which drew the attention of the court to the National Family Health Survey — 3 (of 2005) which states that 46 percent of women in Indian between the ages of 18 and 29 were married before the age of 18 years.

Jstice Gupta also pointed to the need for amending PCMA. The Act, said Justice Gupta “has been breached with impunity”. He added, “I think the time has come when this Act needs serious reconsideration, especially in view of the harsh reality that a lot of child trafficking is taking place under the garb of marriage including child marriage.” Stating that child marriages not only violated human rights, the judge said that it also affects the health of the child.