VINCENT PANIKULANGARA Vs. UNION OF INDIA AND ORS.

JUDGEMENT

(1.) This public interest litigation has been filed by a lawyer practising before this Court pointing out certain inconsistencies in the statutory provisions especially the punishment imposed for committing sexual intercourse with minor female. Petitioner points out that the writ petition is filed to protect and uphold the honour of Indian minor women in so far as a provision has been made under Section 375 of the Indian Penal Code which indicates that sexual intercourse or sexual acts by a man with his own wife, she not being under 15 years age, is not rape. The contention urged by the petitioner is that as per the Child Marriage Restraint Act, 1929, which is replaced by Prohibition of Child Marriage Act, 2006 (hereinafter referred to as '2006 Act'), child is defined as a person, if a male who has not completed 21 years of age and in case of female, if she has not completed 18 years of age. Child marriage is prohibited and after the 2006 Act coming into force, identical provisions had been incorporated regarding child marriage and the age of the contracting parties. The contention of the petitioner is that there cannot be any Indian female below the age of 18 years who can be legally described as wife.

(2.) Section 375 of the Indian Penal Code defines commission of rape. A sexual intercourse committed against a woman with or without her consent when she is under 18 years of age is rape. An exception to the said provision is made which takes out of the penal provision, sexual intercourse or sexual acts of a man with his own wife, she being above 15 years of age.

(3.) Though no counter affidavit has been filed in this case, the learned ASGI submits that the legislature had consciously provided for an exception to Section 375 of the Indian Penal Code, on account of the different custom and practices prevailing in the country, especially with reference to the marriages between children below the age of majority. It is argued that though there is prohibition for child marriages, being a country of such diversity, child marriages are still happening which can be curbed only by creating awareness among the public at large.