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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.
(Para 1) There are really five options before the Court : (i) To let the incongruity remain as it is -- this does not seem a viable option, given that the lives of thousands of young girls are at stake; (ii) To strike down as unconstitutional Exception 2 to Section 375 IPC -- in the present case this is also not a viable option since this relief was given up and no such issue was raised; (iii) To reduce the age of consent from 18 years to 15 years -- this too is not a viable option and would ultimately be for Parliament to decide; (iv) To bring the Pocso Act in consonance with Exception 2 to Section 375 IPC -- this is also not a viable option since it would require not only a retrograde amendment to the Pocso Act but also to several other pro-child statutes; (v) To read Exception 2 to Section 375 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, this is the only pragmatic option available. Therefore, there is absolutely no other option but to harmonise the system of laws relating to children and require Exception 2 to Section 375 IPC to now be meaningfully read as:"Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteer of age, is not rape." It is only through this reading that the intent of social R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 justice to the married gins Gin and the constitutional vision of the Framers of our Constitution can be preserved and protected and perhaps given impetus.
(Para 197) Since the Court has not dealt with the wider issue of "marital rape", Exception 2 to Section 375 IPC should be read down to bring it within the four comers of law and make it consistent with the Constitution of India. Therefore, Exception 2 to Section 375 IPC is read down as follows:"Exception 2.--Sexual intercourse or sexual acts by a 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.
(Paras 196 and 197) It is also clarified that Section 198(6) CrPC will apply to cases of rape of "wives" below 18 years, and cognizance can be taken only in accordance with the provisions of Section 198(6) CrPC. It is reiterated that nothing said in this judgment shall be taken to be an observation one way or the other with regard to the issue of "marital rape".

(Paras 198 and 199) One of the doubts raised was if the Supreme Court strikes down, partially or fully, Exception 2 to Section 375 IPC, is the Court creating a new offence? There can be no cavil of doubt that the courts cannot create an offence. However, there can be no manner of doubt that by partly striking down Section 375 IPC, no new offence is being created. The offence already exists in the main R/CR.A/866/2021 JUDGMENT DATED: 23/08/2021 part of Section 375 IPC as well as in Sections 3 and 5 of the Pocso Act. What has been done is only to read down Exception 2 to Section 375 IPC to bring it in consonance with the Constitution and the Pocso Act. The Court is not creating any new offence but only removing what was unconstitutional and offensive.