Fact of the case :

In 2013, a child rights organization, Independent Thought, filed a writ petition in public interest before the Supreme Court. This petition challenged the constitutionality of Exception 2 to Section 375 (S. 63 BNS) of the IPC which decriminalised sexual intercouse by a husband with his wife between the ages of 15 and 18 years. The Petitioners alleged this provision violated the rights of a married girl child between the ages of 15-18 years, since in all other instances under the IPC the age of consent for sexual intercourse was 18 years. The petition sought clarification and harmonization of Exception 2 with existing laws on child marriage and children’s rights. 

Issue involved

Whether Exception 2 to Section 375 of the Indian Penal Code (S. 63 BNS), 1860 insofar it related to girls aged 15 to 18 years, would be void for violating Article 14, Article 15 and Article 21 of the Constitution of India.

Held: The Court stated that Exception 2 to Section 375 Indian Penal Code [Section 63 of the BNS] in so far as it relates to a girl child below 18 years is liable to be struck down on the following grounds 

1. It is arbitrary capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and therefore, violative of Article 14,15 and 21 of the Constitution of India;

2. It is discriminatory and violative of Article 14 of the Constitution of India and; 

3. It is inconsistent with the provisions of POCSO, which must prevail. 

Therefore, Exception 2 to Section 375 Indian Penal Code [Section 63 of the BNS] is read down as follows : "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years is not rape". (Now it is prescribed as such in new BNS, 2023)