The raging issue whether to make forced marital intercourse and sexual acts part of offence of rape in penal law has been extensively debated and now it cannot be considered as a criminal act, the Supreme Court today 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 15-18 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.
It said, similarly, problem arises when a girl, under 18 years of age, elopes and engages in consensual sexual activity, the male gets booked for rape.
"In these cases, we do have problem if look at various aspects," the bench said as it asked the Centre to apprise it about the number of prosecutions under the Child Marriage Act for past three years in three weeks.
It also asked Centre to apprise it about appointment of the Child Marriage Prohibition Officers (CMPO) under statutory provisions in the country and posted the matter for hearing after four weeks.
The bench was hearing a plea questioning the constitutionality of a provision permitting a man to have physical relationship with his wife even if she is aged between 15 and 18.
The apex court said according to prevailing law, if a man has physical intercourse with a girl under 15 years of age, it is termed as rape irrespective of "consent or no consent" and if she is below 18 years of age, but more than 15 and married, then no offence of rape is made out.
Advocate Gaurav Agarwal appearing for NGO Independent Thought said that distinction made in between 18 and 15 is illegal and unconstitutional.
"Parliament cannot impinge upon Article 21 by allowing the girl to marry under 18 years of age and allowing her to get pregnant or have intercourse. The Parliament should have considered various reports of the United Nations," he said.
He said that a girl in the age group of 15-18 is not that physically developed and she is not capable of taking an informed decision or consent.
"The State has failed to protect her as there is no protection for her is she is below 18. Above 18 years of age she is developed and can think of coming out of abusive relationship," the lawyer said.