New Delhi: In a landmark ruling on Wednesday, the Supreme Court held that in a child marriage, sexual intercourse between a man and his minor wife under the age of 18 is rape.

Delivering this ruling, a bench of Justices Madan B. Lokur and Deepak Gupta declared unconstitutional the Exception 2 to Section 375 of the Indian Penal Code, which gave protection to the husband from criminal prosecution. The court said that immunity couldn’t be granted to a husband having sexual intercourse with his wife between the ages of 15 and 18.

This verdict will protect all existing child marriages and have prospective effect. The victim minor girl will have to lodge a complaint with the police against her husband within one year of the child marriage for the purposes of prosecution.

The court said this section is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable. It was, therefore, inherently discriminatory and violative of Articles 14, 15 and 21 of the Constitution.

The bench, allowing a PIL filed by NGO “Independent Thought” challenging Exception 2 to Section 375 IPC, said: “We make it clear we have refrained from making any observation with regard to the marital rape of a woman who is 18 years of age and above since that issue is not before us at all.”

The bench held that sexual intercourse with a girl below 18 is rape regardless of whether she is married or not. It said Exception 2 carved out in Section 375 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 was arbitrary and discriminatory and was definitely not in the best interests of the girl child.

The bench noted that the artificial distinction was 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. It was also contrary to the philosophy behind some statutes, the bodily integrity of the girl child and her reproductive choice, the court said.

The bench observed that the social cost of a child marriage (and therefore of sexual intercourse with a girl child) was itself quite enormous. This was in addition to the economic cost to the country, which would have to take care of infants who might be malnourished and sickly; the young mother of the infant might also require medical assistance. All these costs eventually add up and apparently only to support a pernicious practice, it said.

The bench said when the age of consent was raised to 18 years, the minimum age of marriage was also 18 and, therefore, fixing a lower age under Exception 2 to Section 375 IPC was totally irrational. It violated the right of fair treatment of the girl child, who was unable to look after herself, the court said, adding that the magic figure of 15 years was not based on any scientific evaluation, but on the mere fact that it had been existing for a long time. The age of 15 years in Exception 2 was fixed in 1940 when the minimum age for marriage was also 15, and the age of consent was 16.

When the age was raised in all other laws, the age under Exception 2 should also have been raised to bring it in line with evolving laws, specially laws to protect women and the girl child below 18. Therefore, the court held it had no hesitation in holding that Exception 2, insofar as it relates to the girl child below 18, was unreasonable, unjust, unfair and violative of the rights of the girl child.

The court said: “We can only express the hope that the Government of India and state governments take an informed decision on the effective implementation of the Prohibition of Child Marriage Act and actively prohibit child marriages, which ‘encourage’ sexual intercourse with a girl child. Welfare schemes and catchy slogans are excellent for awareness campaigns, but they must be backed up by focused implementation programmes, other positive and remedial action so that the pendulum swings in favour of the girl child, who can then look forward to a better future.”

The judges said it was quite clear Parliament was not in favour of child marriages, but Parliament recognises that although child marriage is a criminal activity, the reality of life in India is that traditional child marriages do take place, though studies reveal it is a harmful practice. Strangely, while prohibiting child marriages and criminalising it, such marriages had not been declared void; and what is worse, intercourse within a child marriage was not rape under IPC, though it was a punishable offence under the Protection of Children from Sexual Offences Act 2012.