Prayagraj (Uttar Pradesh): The Allahabad High Court on Thursday under an amendment of Section 315 of the Indian Penal Code, observed that a man having sex with wife who is more than 15 years of age does not amount to rape. Justice Mohd. Aslam while hearing the bail application of one Khushabe Ali from Moradabad had made the comment. The court also granted bail to the accused, who had faced trial on charges of torturing his minor wife for dowry and having unnatural sex, under certain conditions. As per Section 375 (Exception) of the Indian Penal Code - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
Now, Section 375 of the Indian Penal Code (IPC), 1860, states that rape includes all forms of nonconsensual sex with a woman with the exception of intercourse by a man with his wife aged 15 years or above. Thereafter, Section 375 was amended by the Criminal Law Amendment Act, 2013, wherein the age of consent to intercourse was raised to 18 years. However, Section 375 (exception), which creates an exception to marital rape if the wife is of 15 years of age or above, had not been amended, and resulted in an aberration where forced sex by a husband with a minor wife, aged between 15 and 18 years, was permitted.
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Earlier on 8 September 2020, a case was filed against the petitioner by his wife at the Bhojpur Police Station in Moradabad for dowry harassment, assault and for having forced her into having unnatural sex. In this regard, the petitioner's advocate Keshari Nath Tripathi, argued in the court saying that in the statement given before the magistrate, the victim had denied the fact of having unnatural sex and rape by the brothers of the petitioner.
However, a two judge bench of the Supreme Court in 2017 had stated that sexual intercourse with minor (below 18 years) wife is rape.
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