The Centre defended in Supreme Court on Tuesday the exception in Section 375 of the IPC, which states that sexual intercourse between a man and a girl aged between 15 and 18 years will not amount to rape if they are married. Senior counsel Rana Mukherjee told a bench headed by Justice Madan B Lokur that Parliament has deliberately chosen not to change the provision, keeping in view social realities in India where a large number of child marriages still took place.

The court is hearing a PIL filed by NGO Independent Thought which contended that the legal age for giving consent for physical relations was 18 years and, therefore, sex with a girl in cases of child marriage (where she is aged between 15 and 18 years) even with her consent will amount to rape.
According to Exception of IPC Section 375, sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape. The PIL contends that this was violative of Article 14 (right to equality), 15 (right to non-discrimination) and 21 (right to live with human dignity) of the Constitution. The petitioners have also argued that the provision went against the recent ruling by a nine-judge Constitution Bench which said bodily autonomy was part of one’s right to privacy.

The govt counsel said lawmakers had deliberately made child marriages voidable and not void, with an option to a minor girl to get out of such marriages within two years of attaining majority.

The Parliament was aware of international conventions on the issue and reports submitted by Law Commission and others and had retained the provision in its own wisdom, he said. Change in the law, if any, had to be done by the legislature, he reasoned. The bench expressed concern over the practice of child marriage despite the prohibition on it. “It’s not a marriage but a mirage,” Justice Lokur said.