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Adv. Subhadeep Saha (Lawyer.)     15 July 2011

When intercourse with wife becomes rape?

When intercourse with his wife by a man becomes an offence u/sec.376 IPC? What should be the age of the wife under which intercourse becomes rape? Is it 15 yrs or 18 yrs ? Reading together exception to Sec.375 IPC & Sec.198(6) cast a shadow of doubt on this 'age of wife' issue. Plz clarify.


 23 Replies

Adv. Subhadeep Saha (Lawyer.)     15 July 2011

Sec. 198(6) of CrPC.


(Guest)

less tahn 15 years

Adv. Subhadeep Saha (Lawyer.)     15 July 2011

15 yrs is what IPC says. Now have a look what CrPC says:

Sec.198(6) - No court shall take cognizance of an offence u/sec.376 IPC, where such offence consists of s*xual intercourse by a man with his own wife, the wife being under 18 yrs of age,if more than 1 yr has elapsed from the date of the commission of the offence.

THANKACHAN V P (Advocate & Notary)     15 July 2011

It is 15 years .  From did you 18 years?!

(6) No court shall take cognizance of an offence under section 376 of the Indian Penal Code (45 of 1860), where such offence consists of s*xual inter-course by a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence.


I verified the website of ministry of Home Affairs https://mha.nic.in/uniquepage.asp?Id_Pk=290

 

THANKACHAN V P (Advocate & Notary)     16 July 2011

Originally posted by :THANKACHAN V P
"
It is 15 years .  From where did you get 18 years?!

(6) No court shall take cognizance of an offence under section 376 of the Indian Penal Code (45 of 1860), where such offence consists of s*xual inter-course by a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence.




I verified the website of ministry of Home Affairs https://mha.nic.in/uniquepage.asp?Id_Pk=290

 
"

Adv. Subhadeep Saha (Lawyer.)     16 July 2011

Sir, earlier it was "15 yrs". But CrPC Amendment Act,2008 has changed it to "18 yrs". Plz see sec.18 of the CrPC Amendment Act,2008 effective from 31.12.2009. 

Sec.18 of CrPC Amendment Act,2008 - In section 198 of the principal Act, in sub-section (6), for the words "fifteen years of age", the words "eighteen years of age" shall be substituted.

THANKACHAN V P (Advocate & Notary)     16 July 2011

Yes you are correct . Thank you very much for bringing it my attention.Then we should aacept the 18 as the age for rape by husband .

And I have some doubt regarding 324 and 354 IPC .Is it non-bailable now?.

Adv. Subhadeep Saha (Lawyer.)     16 July 2011

You r right sir. Sec.324 has been made non-bailable in 2008 amendment whereas 354 is still bailable.

 

Now the question arise whether procedural law(18 yrs, CrPC) will override substantive law(15 yrs,IPC) ?

Ms Liberal (others)     16 July 2011

Yes it is rape even if she is more than 18 years How can you force anyone to have s**

Adv. Subhadeep Saha (Lawyer.)     16 July 2011

I m not forcing anyone dude. Law does not always go by morality, but by reason.

 

Law says that if a person has intercourse with his wife, even if forcibly & wife not consenting to such act, then if the wife is above 15 yrs of age then it is not rape u/sec.375 of Indian Penal Code. The law is very clear here. See exception to Sec.375 of Indian Penal Code.

The reason here is that consummation of marrige is very essential for the married persons. Otherwise it may be a ground of divorce under Hindu Marriage Act as cruelty.

Ms Liberal (others)     17 July 2011

Cool Dude These laws are very old you better know somewhere in 1860 and needs to be modified . How can you compel woman to have s** if she is not ready . Laws says a lot of things and except layers how many follow the procedures

The law expect that ignorance of law is of no excuse which means that every one has the basic knowledge of law. Lawyers itself confused about the age of marraiage , abduction, intercourse etc......

If social activities do pressure then law will also change

Previously law says that for rape onus of proof is on woman and when the people gheroed than its is on the man and one ststement of woman for rape is sufficient to put behind the bars whether he is lawyer or not?

Tommorow the wife will also says that she can force her husband for s** but her moral ethics don't permit

Adv. Subhadeep Saha (Lawyer.)     17 July 2011

Mr Liberal, your arguments r somehow logically true, but legally unacceptable. Here the age of wife issue is purely a question of law which is needs to be clarified by a superior court like a high court or supreme court. Your arguments above only expresses your grudge & grievances towards the law & justice system. I am discussing about 'what the law is' & you r discussing about 'what the law should be'!! This is not the answer. I think you r not a lawyer by profession. Because your words r more like a layman who is fed up with the legal system rather than a legally acceptable argument of a lawman in a court of law.

Everyone of us are more or less dissatisfied with the justice delivery system. But here I have raised a question of law which needs clarification to resolve the conflict between the procedural law & the substantive law.

You better express your anguish over the legal system through writing articles in newspapers or through some other publication. This forum is for legal discussion & not for sentimental speeches.


(Guest)

yes, Mr saha is right. This is meant for legal discussions only

Ms Liberal (others)     17 July 2011

Mr Anonymous, I could not expect that without giving any thought you are approving the basless laegal points. The leagl system needs to be improved


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