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2017 (10) TMI 1602 - SC - Indian LawsConstitutional Validity of Exception 2 to Section 375 of the Indian Penal Code, 1860 (the IPC) - Rape - whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape? - HELD THAT:- Since this 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 corners of law and make it consistent with the Constitution of India. It is opined that Exception 2 to Section 375 IPC in so far as it relates to a girl child below 18 years is liable to be struck down on the following grounds:– (i) it is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Article 14, 15 and 21 of the Constitution of India; (ii) it is discriminatory and violative of Article 14 of the Constitution of India and; (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 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. It is also clarified that Section 198(6) of the Code 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) of the Code.
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