After the NDA government argued that sexual intercourse between a husband and a wife of age 15 years or older is not rape irrespective of whether there is consent from the wife, the Supreme Court on Wednesday said that this provision of criminal law has been thoroughly discussed and debated, and that it cannot be considered a criminal offence.

However, a bench of justices MB Lokur and Deepak Gupta questioned whether the Centre sought the protection of underage married girls from forced sexual activities while also seeking a response on possible intervention of the court in cases where a married girl below 18 years of age is sexually exploited.

“There are cases when college-going teens, below 18 years of age, engage in sexual activities consensually and get booked under the law. Who is going to suffer? The boy is not at fault. The punishment of seven years is too harsh,” the bench observed stressing on the conundrum of how a male is booked for rape when he marries and engages in sexual activity with a girl below 18 years of age.

The bench said that sexual intercourse, consensual or not, with a girl below 15 years is rape. Observing the number of child marriages still prevalent in India, the apex court reiterated that the legal marrying age for a girl is minimum 18 years.

But it also stressed that if a girl is more than 15 years of age and married, then the offence of rape cannot be considered.

After an NGO filed a petition seeking that the minimum age of consensual sex for a girl should be declared at 18 years, irrespective of whether she is married or not, the Centre defended Indian Penal Code’s Section 375 Exception 2 saying that removing the provision would shake the institution of marriage in India.

The IPC’s Section 375 describes the offence of rape extensively with an exception stating, “Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.”