After debating on whether the issue of marital rape can be classified as a criminal offence, the Supreme Court on Wednesday said that marital rape cannot be considered a criminal act.

According to Section 375 of the Indian Penal Code, intercourse or sexual act by a man with is wife, who is not below 15 years of age, is not rape. The SC wanted to know whether the Parliament had debated protecting married girls between the ages of 15-18 from 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.

“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 also said that when a girl, who is under 18 years old, engages in consensual sexual activity, the man gets booked for rape.

If the girl is below 18 years of age, but older than 15 years and is married, then no offence of rape is made out, the court said.

Advocate Gaurav Agarwal said that the state has failed to protect girls in the 15-18 age groups. 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.

Advocate Binu Tamta, who appeared for the Centre, said that the Parliament has kept the age of 15 as a threshold, keeping the social and economic conditions of the country in mind.

Iran, Saudi Arabia, China, Pakistan are some other countries which have not criminalised marital rape. Women and Child Development Minister Maneka Gandhi has said marital rape cannot be “suitably applied in the Indian context” due to factors such as poverty, illiteracy and religious beliefs. 

Some kinds of rape can’t be sacred, and some can’t be criminal, lawyer Karuna Nundy had told SheThePeople.TV.

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