Sex with a wife who was below the age of 18 years
The Supreme Court on Wednesday said it was unfortunate that successive governments blinked at the incongruity of Section 375(2) of Indian Penal Code that absolved a husband of rape charges even if he had sex with a wife who was below the age of 18 years+ .
Referring to the five-year-old Parliament-enacted Protection of Children from Sexual Offences (POCSO) Act, a bench of Justices Madan B Lokur and Deepak Gupta said POCSO Act provides that if a person related to a child below 18 years of age commits a penetrative sexual assault on that child, then he would be liable for aggravated penetrative sexual assault.
“Therefore, if the husband of a girl child commits penetrative sexual assault on his wife, he actually commits aggravated penetrative sexual assault as defined under Section
He said, “The duality therefore is that having sexual intercourse with a girl child between 15 and 18 years of age, the husband of the girl child is said to have not committed rape as defined in Section 375 of the IPC but is said to have committed aggravated penetrative sexual assault in terms of Section 5(n) of the POCSO Act.”
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“The only difference is that the definition of rape is somewhat more elaborate and has two exceptions but the sum and substance of the two definitions is more or less the same and the punishment for being found guilty of committing the offence of rape is also same under IPC and POCSO Act.” The bench said POCSO Act was legislatively intended to override all other laws.