⚖️ Supreme Court on Sexual Intercourse by a Man with His Wife
Rape was defined in Section 375 IPC. There were two exceptions to this definition. Exception 2 dealt with sexual intercourse or sexual acts by a man with his own wife:
“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
This meant that once the wife crossed the age of 15 years, sexual intercourse or sexual acts by her husband with her, with or without her consent, was not rape.
In 2017, the Supreme Court of India had to decide whether sexual intercourse between a man and his wife — the wife being a girl between 15 and 18 years of age — was rape.
📚 Case: Independent Thought v. Union of India [October 11, 2017]
Decision
- Exception 2 to Section 375 IPC answered this in the negative, but the Court held that sexual intercourse with a girl below 18 years of age is rape, regardless of whether she is married or not.
- The exception created an artificial distinction between a married girl child and an unmarried girl child, which was arbitrary and discriminatory.
- This was not in the best interest of the girl child.
⚖️ Key Observations
- Exception 2 gave immunity to the husband alone, unlike other penal laws.
- A husband could be punished for assault (Sections 323, 325 IPC) but not for rape — an anomalous situation.
- Other sexual crimes against women (Sections 354, 354A–D IPC) had no marital immunity.
📖 Conflict with POCSO Act
- Section 5 POCSO defines aggravated penetrative sexual assault when committed by a husband on a child wife.
- Punishable under Section 6 with rigorous imprisonment of 10 years to life.
- Thus, while IPC did not call it rape, POCSO treated it as aggravated sexual assault.
- Section 42A POCSO: in case of inconsistency, POCSO overrides IPC.
Verdict
The Court harmonized IPC and POCSO and held:
“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”
📌 Consequence
The judgment effectively rewrote Exception 2 to Section 375 IPC — raising the age from 15 to 18. After this judgment, marital intercourse with a wife under 18 years is rape.
📜 Update in Bharatiya Nyaya Sanhita (BNS) 2023
The BNS 2023 amended the law and incorporated the Supreme Court’s judgment:
“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”
Now, the law declared by the Supreme Court and the law enacted by Parliament are consistent — unlike the period between 2017 and 2023.
👉 For more detailed law explanations, explore our Judiciary Notes for complete coverage.
❓ Frequently Asked Questions on Marital Rape Exception
Exception 2 stated that sexual intercourse by a man with his own wife, if she was above 15 years of age, was not rape. This gave immunity to husbands.
The Court ruled that intercourse with a wife under 18 years of age amounts to rape, harmonizing IPC with the POCSO Act. It effectively raised the threshold from 15 to 18 years.
It treated married girls differently from unmarried girls, denying equal protection. It was arbitrary and against the best interests of the child.
Section 42A of the POCSO Act provides that in case of inconsistency, POCSO prevails. Thus, intercourse with a minor wife is treated as aggravated penetrative sexual assault.
BNS 2023 amended the law, raising the wife’s age from 15 to 18 in Exception 2. It aligned statutory law with the 2017 Supreme Court judgment.
No. Only intercourse with a wife below 18 is treated as rape. Intercourse with an adult wife (18+) without consent is still not classified as rape under Indian law.
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