A' had sexual intercourse with 'B' a minor girl before 16 years of age with her consent.

Whether A has committed any offence ?Give reason.

Statutory Rape is defined in Section 375 of Indian Penal Code, (amendment of 2013)
which states that “any male, who does an intercourse with any female who is below the age
of 18, with or without her consent will be constituting a Statutory Rape”.
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.
Exception clause to the heinous offence of rape allows a man to have sex with his wife
who is not aged below 15.

The Supreme Court on Wednesday held that sexual intercourse by a man with his
wife, who is below 18 years of age, is rape.

A girl child below the age of 18 cannot be treated as a commodity having no say over
her body or someone who has no right to deny sexual intercourse to her husband, the
Supreme Court held.

“Human rights of a girl child are very much alive and kicking whether she is married
or not and deserve recognition and acceptance,” a Bench of Justices Madan B. Lokur and
Deepak Gupta observed.

Separate judgments

The two judges wrote separate judgments totalling 127 pages. The court read down
Exception 2 to Section 375 (rape) of the Indian Penal Code (IPC), which allowed the
husband of a girl child — between 15 and 18 years of age — blanket liberty and freedom
to have non-consensual sexual intercourse with her. Her willingness or consent was of no
concern. The husband in such cases was not punished for rape.

The exception had remained an anomaly because Section 375 itself mandated that
sex with a girl below 18 years of age, with or without her consent, was statutory rape. An
unmarried girl child can prosecute her rapist, but a married girl child aged between 15
and 18 could not even do that, Justice Lokur said, pointing out the injustice.

“A child remains a child whether she is described as a street child or a surrendered

child or an abandoned child or an adopted child. Similarly, a child remains a child
whether she is a married child or an unmarried child or a divorced child or a separated or
widowed child. At this stage we are reminded of Shakespeare’s eternal view that a rose
by any other name would smell as sweet — so also with the status of a child, despite any
prefix,” Justice Lokur wrote.
 The court, however, refrained from dealing with the issue of marital rape of a
woman aged above 18.

With this judgment, considered by experts as trigger to declaring child marriage void
ab initio, the court ended the decades-old disparity between Exception 2 to Section
375 IPC and other child protection laws.

These include the Prohibition of Child Marriage Act of 2006, Protection of Children
from Sexual Offences Act and Juvenile Justice Act, all which define a “child” as
someone who is below 18 years of age.

The court held that the exception clause to rape, carved out in the IPC, created an
unnecessary and artificial distinction between a married girl child and an unmarried
girl child. The clause took away the right of a girl child to bodily integrity and
reproductive choice. It had even the effect of turning a blind eye to trafficking of the
minor girl children in the guise of marriage.

Conflict between IPC and POCSO Act

The Protection of Children from Sexual Offences (POCSO) Act of 2012 defines 'children'
as those aged below 18. It has specific provisions declaring that 'penetrative sexual
assault' and 'aggressive penetrative sexual assault' against children below 18 is rape.
The POCSO Act defines a child as any person below eighteen years of age, and regards the
best interests and well-being of the child as being of paramount importance at every phase,
to ensure the healthy physical, emotional, academic and societal development of the child. It
defines different forms of sexual abuse that contain penetrative and non-penetrative assault,
as well as sexual harassment and pornography such as when the abused child is mentally
police officer, teacher, or doctor.
People those who traffic the children for sexual purposes are also punishable under the
provisions relating to abetment in the Act. The Act further makes provisions for avoiding the
re-victimization of the child at the hands of the judicial system. It provides for special judges
that will be bearing the trial in-camera and without revealing the individuality of the child.
The Act also delivers for mandatory reporting of sexual offences.

Section 375 in The Indian Penal Code is stated below:

A chink in the colonial era Indian Penal Code (IPC), allowing a man to have sexual
intercourse with his child wife, has led the Supreme Court to give a directive to the
Central government.

An exception to Section 375 in the IPC does not find a man guilty to having sexual
intercourse with his 15-year-old wife. This exception ensures that he will not be charged
for rape even though child marriage is a crime.
As per Section 375.
Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has
sexual intercourse with a woman under circumstances falling under any of the six following
des c r i p tions:—
(First) — Against her will.
(Secondly) —Without her consent.
(Thirdly) — With her consent, when her consent has been obtained by putting her or any
person in whom she is interested in fear of death or of hurt.
(Fourthly) —With her consent, when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she is or believes
herself to be lawfully married.
(Fifthly) — With her consent, when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or through
another of any stupefying or unwholesome substance, she is unable to understand the
nature and consequences of that to which she gives consent.
(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.
—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of
rape.

Conclusion:
Any form of sexual relationship between two minors, irrespective of their consent is
known as statutory rape, which is unlawful because either parties of such act is below the
legal age to get involved sexually, further making them incapable of giving their consent to
the said act. Hence, the consent is irrelevant.