The Ministry of Home Affairs (MHA) has cited “social realities” as the reason for not criminalising ‘marital rape’ of girls under 18 years of age in the country.

“Although the age of consent is 18 years and child marriage is discouraged, marriage below permissible age is avoidable but not void on account of social realities. It is submitted that the social, economic and educational development of the country is still uneven and child marriages are taking place. It has been decided to retain the age of 15 years under the exception 2 of Section 375 so as to give protection to husband and wife against criminalising the sexual activity between them,” said an MHA affidavit filed before the Delhi High Court Monday.

Section 375 of the Indian Penal Code (IPC) gives the legal definition of rape, which includes the provision that sexual activity with a girl less than 18 years of age would be defined as rape even if the accused claims that the girl had consented to the act. However, exception 2 to the provision states that “rape” would not be applicable if the sexual activity is done with a girl above 15 years of age if the man is married to the girl.

In a PIL, NGO RIT foundation, sought court directions to criminalise marital rape on the grounds that “Section 375 discriminates against married women sexually assaulted by their own husbands (and) is violative of Articles 14 and 21 of the Constitution”.

The MHA affidavit also stated that the issue of criminalising marital rape was being heard before a Supreme Court bench, where a PIL has been filed to strike down exception 2 to section 375. The court will hear the matter further on October 17.

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