Illustrated by Kanishka Panwar
Winter Intern 2026-Lex Lumen Research Journal
On 11th September 2017, the Supreme Court delivered two concurring opinions, raising the age of consent for marital sexual intercourse to 18 years, one authored by Justice Madan Lokur and another by Justice Deepak Gupta.
Factual background
Exception 2 to Section 375 of the Indian Penal Code created an exception to the offence of rape in cases of forced sexual intercourse by a man with his own wife if she was of 15 years of age or above. This means that forced sexual intercourse by a husband with a minor wife between the ages of 15 and 18 was permitted.
In 2013, a Non-Governmental Organisation, Independent Thought, filed a writ petition before the Supreme Court challenging the Exception as unconstitutional for violating Articles 14,15 and 21 and conflicting with other laws. In August 2017, Child Rights Trust, a NGO working to prevent child marriages, joined as an Intervenor and was heard extensively.
Issues framed
(i) Whether the Exception violates Article 21 by prescribing a lower age of consent for married girls?
(ii) Whether the Exception violates Article 14 by discriminating between married and unmarried minor girls in cases of sexual violence?
(iii) Whether the Exception can go against the age of consent universally fixed by the Parliament at 18 years for girls in all other statutes?
Arguments Advanced
Petitioner Arguments
Independent Thought and Child Rights Trust argued that the classification between married and unmarried minor girls in punishing sexual violence has no rational nexus to the objectives of the Section, and thereby it does not satisfy the test of reasonable classification under Article 14. It is also contrary to the obligations of the State to protect child rights under Article 21 and International Conventions. It is further inconsistent with other laws.
Contradiction with other laws
Section 375 of the IPC was amended by the Criminal Law Amendment Act, 2013, raising the age of consent to 18 years, bringing the law in consonance with other statutes.
Under the Prohibition of Child Marriage Act, 2006, a marriage contracted between minors, i.e., below 18 years in case of girls and 21 in case of boys, can be declared void at the instance of the person who was a minor at the time of the marriage.
Further, the Juvenile Justice (Care and Protection of Children) Act, 2015 defines a child as anyone below 18 years.
Most importantly, definition of rape under Section 375 of the IPC is similar to aggravated sexual assault under the POCSO Act, 2012. Men do not enjoy immunity under the latter, as is granted under the Exception. POCSO, being a special law enacted to secure the best interests of the child, must prevail.
Respondent arguments (UOI)
The Union of India contended that any correction to the Exception under Section 375 lay within the Parliament’s domain, emphasising that the issue had been repeatedly considered and retained due to social realities and the State’s reluctance to interfere in marital life. Retaining the exception was intended to protect husbands from rape prosecutions in cases of child marriage. Referring to the data (NFHS-III) indicating that a substantial number of women were married before attaining 18 years of age, it was argued that criminalising marital relations in such marriages would be inconsistent with prevailing socio-economic conditions.
Decision
The Court held that a child remains a child irrespective of the nomenclature given to the child. It affirmed that a minor cannot give valid consent to sexual intercourse, and that Exception 2 to Section 375 IPC creates an unjustified distinction between a married and an unmarried girl children. The Exception was found to lack rational nexus with the provision’s objective. It is also contrary to the ethos of Article 15(3) as well as Article 21 of the Constitution and India’s commitments under international conventions.
The Court observed that forced sexual intercourse with a girl child, even by her husband, violates her rights to life, liberty, equality and dignity. It also highlighted the inconsistency with the POCSO Act, pointing out the failure of the Legislature to address a conflict that legitimised an otherwise heinous crime.
Finally, on October 12th 2017, the two-judge bench, through two concurring opinions, held the Exception 2 to Section 375 IPC as violative of Article 14, 15 and 21, and read down the same. It raised the age of consent to 18 for the purpose of the Exception and also called for legal reforms to address violations of girl’s rights due to child marriage.
Comments
Although the Court raised the age of consent for marital sexual intercourse, strengthening protection for child brides, it did not directly address marital rape. By implying that girls under eighteen are not truly “wives”, as reflected in Justice Gupta’s opinion, the reasoning failed to engage with the girl child’s independent agency and instead reflected a broader State objective of regulating female sexuality.
Marital rape of adult women continues to remain unrecognised. A more women-centric approach, grounded in autonomy and choice, is needed to address the issue of marital rape among adult women.
