 "Sex with minor wife: 10 yrs in 1860 to 18 now, how marital rape law changed")
The Supreme Court on Wednesday tracked the provisions in the Indian Penal Code since its enactment in 1860 on the issue of giving legitimacy to sexual intercourse between the husband and his minor wife.
A bench of Justices M B Lokur and Deepak Gupta noted that the age of consent for the sexual intercourse was subjected to increase more than once in India.
Both the judges, in two separate but concurring judgements, noted that at the time the IPC was enacted, the age given in exception 2 (sexual intercourse by a man with his wife is not rape if she is not below certain age) of section 375 (defining rape) was changed from time to time. Till 1929, no minimum age of marriage was legally fixed.
However, in 1860 while there was no minimum age for marriage, the minimum age of consent under section 375 of the IPC was 10 years for a girl child, it said.
The bench said that in 1891, the age for consent was raised to 12 years.
The difference came in 1925, when the age of consent was raised to 14 years, the age under exemption 2 to section 375 of IPC was raised to 13, the bench said.
It said that in 1929 the Child Marriage Restraint Act was passed where the minimum age for marriage as well as the consent was fixed at 14, the age under exemption 2 to section 375 of IPC was not raised from 13.
In 1940, the IPC was again amended and the age of consent was raised to 16 years, but under exception 2 to Section 375 IPC, the age was raised to 15 years and the minimum age of marriage under the Restraint Act was also 15 years, it said.
The court noted that further in 1978, the IPC was again amended and the age of consent was put at 16 years but under exception the minimum age remained at 15 while the minimum age for marriage of girl child was raised to 18 years.
However, after the "unfortunate" December 16 gangrape incident, the Parliament in 2013 raised the age of consent to 18 years.
The minimum age for marriage of a girl child remained at 18 years, but no change was made in exception 2 to Section 375 IPC and a girl child who was married before the minimum age of marriage, could be subjected to sexual intercourse (forcible or otherwise) by her husband and if she was over 15 years of age, the husband could not be charged with any offence.
A bench of Justices M B Lokur and Deepak Gupta noted that the age of consent for the sexual intercourse was subjected to increase more than once in India.
Both the judges, in two separate but concurring judgements, noted that at the time the IPC was enacted, the age given in exception 2 (sexual intercourse by a man with his wife is not rape if she is not below certain age) of section 375 (defining rape) was changed from time to time. Till 1929, no minimum age of marriage was legally fixed.
However, in 1860 while there was no minimum age for marriage, the minimum age of consent under section 375 of the IPC was 10 years for a girl child, it said.
The bench said that in 1891, the age for consent was raised to 12 years.
The difference came in 1925, when the age of consent was raised to 14 years, the age under exemption 2 to section 375 of IPC was raised to 13, the bench said.
It said that in 1929 the Child Marriage Restraint Act was passed where the minimum age for marriage as well as the consent was fixed at 14, the age under exemption 2 to section 375 of IPC was not raised from 13.
In 1940, the IPC was again amended and the age of consent was raised to 16 years, but under exception 2 to Section 375 IPC, the age was raised to 15 years and the minimum age of marriage under the Restraint Act was also 15 years, it said.
The court noted that further in 1978, the IPC was again amended and the age of consent was put at 16 years but under exception the minimum age remained at 15 while the minimum age for marriage of girl child was raised to 18 years.
However, after the "unfortunate" December 16 gangrape incident, the Parliament in 2013 raised the age of consent to 18 years.
The minimum age for marriage of a girl child remained at 18 years, but no change was made in exception 2 to Section 375 IPC and a girl child who was married before the minimum age of marriage, could be subjected to sexual intercourse (forcible or otherwise) by her husband and if she was over 15 years of age, the husband could not be charged with any offence.