Recently, the Supreme Court of India acquitted a Man who was convicted of the offence of rape and sexual intercourse with his minor wife. The Court relied on Exception 2 to Section 375 of the Indian Penal Code, which exempts marital rape from punishment if the wife was aged above 15 years.

The division bench of Justices B.R. Gavai and Justice Sanjay Karol was considering an appeal arising out of a conviction under the Protection of Children from Sexual Offences Act, 2012, which a single judge of the Karnataka High Court had later substituted with a conviction under Section 376 of the Indian Penal Code, 1860.

However, the Supreme Court of India noted that the prosecutrix has filed an affidavit stating that she was married to the appellant and that a child is also born in wedlock. The appellant contended that he had married the prosecutrix and their relationship was consensual. 

“It is clear that the sexual act by the appellant with the prosecutrix, who are husband and wife, with the latter being above 15 years of age would not amount to rape as per the provision.”, the Court held.

“From the evidence placed on record, it would be clear that the prosecutrix was above the age of 15 years when the sexual act was alleged to have taken place as a result of which the prosecutrix conceived. In a result, the conviction is not sustainable. The appeal is allowed, and the appellant is acquitted of the charges charged. He is directed to be set at liberty, if not required in any other case. The bail bonds of the accused shall stand discharged.”

However, the Supreme court adopted a purposive approach to reading down the exception to the extent that the age of consent supplied under it was raised to 18 years and sex with an underage wife was altogether criminalised.

The next date of hearing is on 21st March, 2023