In his separate judgment, Justice Dipak Gupta investigates the reason behind the “magic figure” of 15.
Exception 2 of Section 375 (rape) of the Indian Penal Code allows a husband to have sexual intercourse with his minor wife, with or without her consent, if she has crossed the age of 15.
“What is the reason for fixing the magic figure of 15 years?” Justice Gupta asks.
His research, the judge notes, revealed that the reason dates back to 1940, when the age of consent for sexual intercourse for a girl was 16 years, the age of marriage was 15 years and the age under the exception was also 15 years.
In 1975, too, the age of consent was 16 years, the age of marriage was 18 years, but the age under the exception remained 15 years, the judge observes.
Today, when the age of consent and marriage of a girl are both 18, the age under the exception clause is frozen at 15 years.
“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... 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,” Justice Gupta observed.
