Can husband establish sexual relationship with his own minor wife?

According to Exception 2 to section 375 IPC, sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

POCSO Act, 2012 doesn't provide any such exception in the statute book.

On 11/10/2017, Hon’ble Supreme Court while dealing with a writ petition(Independent Thought vs Union of India), concerning to the above-mentioned subject matter, partially struck down Exception 2 to section 375 IPC and held that, the Exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. The artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child. The artificial distinction is contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Articles 14,15 and 21 of the Constitution and our commitments in international conventions.

Court also noted that, in the year 1940, the age of consent was 16 years, the age of marriage was 15 years and the age under the Exception was also 15 years; in 1975, the age of consent was 16 years, the age of marriage was 18 years, but the age under the Exception remained 15 years. That may have been there because there was no change in the age of consent under clause sixthly. Now when the age of consent is changed to 18 years, the minimum age of marriage is also 18 years and, therefore, fixing a lower age under Exception 2 is totally irrational. It strikes against the concept of equality. It violates the right of fair treatment of the girl child, who is unable to look after herself. The magic figure of 15 years is not based on any scientific evaluation, but is based on the mere fact that it has been existing for a long time. The age of 15 years in Exception 2 was fixed in the year 1940 when the minimum age for marriage was also 15 and the age of consent under clause Sixthly was 16. In the present context when the age for marriage has been fixed at 18 years and when the age of consent is also fixed at 18 years, keeping the age under Exception 2 at 15 years, can not be said to be right, just and fair. In fact, it is arbitrary and oppressive to the girl child.

The answer of the question is in negative since with the effect of the above discussed judgment, (Independent thought vs Union of India) any sexual relationship established by husband with his minor wife is rape under section 375 of IPC and therefore, punishable under section 376 of IPC. Apart from this, such relationships shall also be punishable under various provisions of POCSO Act, 2012.

(Note - Currently, under Prohibition of Child Marriages Act, 2006, child marriages are valid, but voidable at the option of the minor involved.)

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