2017 SCC Vol. 10 December 28, 2017 Part 5

Penal Code, 1860 — S. 375 Exception 2 — Man committing sexual intercourse or acts with own wife aged between 15 and 18 yrs exempted from offence of rape, regardless of wife’s consent vide said Exception: Exception 2 is violative of Arts. 14, 15 and 21 of the Constitution and contrary to constitutional morality, human right concept as also pro-girl child statutory provisions contained in various other legislations. Hence by a harmonious and purposive interpretation, Exception 2 has to be read down as providing “Sexual intercourse or sexual acts by a man with his own wife, not being under eighteen years of age, is not rape”, so as to bring it in consonance with constitutional and pro-girl child statutory philosophy. Clarified, no view expressed on issue of marital rape, where the wife is 18 yrs old or older. Further clarified, that this judgment will have prospective effect and that S. 198(6) CrPC will apply to cases of rape of “wives” below 18 years, and cognizance can be taken only in accordance with the provisions of S. 198(6) CrPC. [Independent Thought v. Union of India, (2017) 10 SCC 800]

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