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(iii) it is inconsistent with the provisions of POCSO, which must prevail.

Therefore, Exception 2 to Section 375 IPC is read down as follows:

'Sexual intercourse or sexual acts by man with his own wife, the wife not being 18 years, is not rape'.
It is, however, made clear that this judgment will have prospective effect."

7. The learned APP further submits that in Independent Thought vs. Union of India (supra) the Hon'ble Supreme Court has considered all the aspects involved and in order to bring POCSO Act in consonance with Exception 2 to Section 375 aba203.22 of the Indian Penal Code (for short "IPC"), had taken pragmatic option available. The impact on the society of the child marriages was also considered and therefore, in fact the case is against the interest of the applicant. Rather when offence is clearly made out, the applicant does not deserve to be released on bail.

11. It is to be noted that Exception 2 to Section 375 of the IPC is thus:

" Exception 2. - Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."

12. However, the matter was placed before the Hon'ble Apex Court in Independent Thought vs. Union of India (supra) for the interpretation of the said Clause as well as by pointing out the conflict or incongruity between the provisions of IPC and POCSO Act. It was observed that, rape of married girl child (between 15 to 18 years of age) is not rape under IPC and aba203.22 therefore not offence in view of Exception 2 to Section 375 thereof, but it is offence of aggravated penetrative sexual assault under Section 5(n) of POCSO Act and punishable under 6 of that Act. This conflict or incongruity needs to be resolved in best interest of girl child and provisions of various complementary statutes need to be harmonized and read purposively to present an articulate whole and therefore, taking into consideration the object with which various Acts were enacted, the report of Law Commission of India, National Policy and National Plan, the Protection of Human Rights Act etc. were considered. Section 42-A of the POCSO Act inserted in POCSO Act by amendment dated 3rd February 2013 was also considered and the further consideration was for the definitions in Juvenile Justice (Care and Protection of Children) Act, 2015. The brief summary of the existing legislations has been considered in Para 52 of the Judgment, which reads thus:

(v) To read Exception 2 to Section 375 of the IPC in a purposive manner to make it in consonance with the POCSO Act, the spirit of other pro-child legislations and the human rights of a married girl child. Being purposive and harmonious constructionists, we are of opinion that this is the only pragmatic option available. Therefore, we are left with absolutely no other option but to harmonize the system of laws relating to children and require aba203.22 Exception 2 to Section 375 of the IPC to now be meaningfully read as: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape." It is only through this reading that the intent of social justice to the married girl child and the constitutional vision of the framers of our Constitution can be preserved and protected and perhaps given impetus."

15 and 21 of the Constitution. Therefore, this Court is of the view that Exception 2 to Section 375 IPC is arbitrary since it is violative of the principles enshrined in Articles 14, 15 and 21 of the Constitution of India."

15. The major inconsistency between POCSO Act and IPC was also considered by the Hon'ble Apex Court and therefore, the said Exception to Section 375 of the IPC was rather modified and instead of age 15 it was replaced by the word "18". It will have aba203.22 to be said that since the law has been laid down by the Hon'ble Apex Court under Article 32 of the Constitution of India, it is the law and it will have to be interpreted in the same way which has been put in Independent Thought vs. Union of India (supra).