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"Per Lokur, J.

Section 375 Exception 2 IPC The issue before the Court in this case is limited to the question--whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape? The Court is not concerned here with regard to the marital rape of a woman who is 18 years of age and above.

(Paras 1 and 2) Section 375 IPC defines "rape". This section was inserted in IPC in its present form by an amendment carried out on 3-2-2013 and it provides that a man is said to commit rape if, broadly speaking, he has sexual intercourse with a woman under circumstances falling under any of the seven descriptions mentioned in the section. Clause 'Sixthly' of Section 375 makes it clear that if the woman is under 18 years of age, then sexual intercourse with her--with or without her consent--is rape. This is commonly referred to as "statutory rape" in which the willingness or consent of a woman below the age of 18 years for having sexual R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 intercourse is rendered irrelevant and inconsequential. However, Exception 2 to Section 375 IPC provides that it is not rape if a man has sexual intercourse with a girl above 15 years of age and if that girl is his wife. In other words, a husband can have sexual intercourse with his wife provided she is not below 15 years of age and this is not rape under IPC regardless of her willingness or her consent. However, sexual intercourse with a girl under 15 years of age is rape, whether it is with or without her consent, against her will or not whether it is by her husband or anybody else. This is clear from a reading of Section 375 IPC including Exception 2. Therefore Section 375 IPC provides for three circumstances relating to "rape". Firstly, sexual intercourse with a girl below 18 years of age is rape (statutory rape). Secondly, and by way of an exception, if a woman is between 15 and 18 years of age then sexual in intercourse with her is not rape if the person having sexual intercourse with her is her husband. Her willingness or consents is irrelevamt under this circumstance. Thirdly, sexual intercourse with a woman above 18 years of age is rape if it is under any of the seven descriptions given in Section 375 IPC (non-consensual sexual intercourse). The result of the above three situations is that the husband of a girl child between 15 and 18 years of age has blanket liberty and freedom to have non-consensual sexual intercourse with his wife and he would not be punishable for rape under IPC since such non-consensual sexual intercourse is not rape for the purposes of Section 375 IPC.