Court case(2017) 10 SCC 800

A registered society working for child rights filed a writ petition under Article 32. After the 2013 Amendment the age of consent under s. 375 IPC was eighteen, yet Exception 2 said that intercourse by a man with his own wife, the wife not being under fifteen years of age, was not rape. The petitioner argued that a married girl between fifteen and eighteen was thus denied the protection that every other girl of that age had, including under the POCSO Act, 2012, which treats penetrative sexual assault on any child under eighteen as an offence.

The Court held that Exception 2 to s. 375 created an artificial distinction between a married and an unmarried girl child with no rational nexus to any object, and was inconsistent with the POCSO Act, which overrides the IPC under s. 42A. It read the Exception down so that it reads: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape." Both judges made clear that they were not deciding anything about marital rape of a woman above eighteen, which was left open.