In The Supreme Court of India
Civil Original Jurisdiction
Writ petition (civil) no. 382 of 2013
Union of India
Date of Judgement
Decided on October 11th, 2017
Madan B. Lokur J and Deepak Gupta J
Independent Thought, a registered society working for the welfare of Child Rights filed a Writ petition in the Supreme Court under Art.32 of the Indian Constitution. The respondents in this case were the Union of India and National Commission for women.
Section 375 of the Indian Penal Code (IPC) defines Rape and that includes certain other provisions with regard to non-consensual sexual acts committed by a man against a woman. It also includes provisions dealing with the statutory age of consensual sex as 18 years. Exception 2 to Section 375 states that a husband can have non- consensual sex with his wife who is a minor or between the age group of 15 to 18 years. The stated provisions under Section 375 of IPC violates the fundamental rights under Art.14, 15 and 21 of the Indian constitution.
The stated provision is contradictory to Section 3 of the POSCO Act (Protection of Children from Sexual Offences) Act has criminalized penetrative sexual assault. Under the Prohibition of Child Marriage Act, 2006 the minimum marriageable age for a girl is 18 years and for a boy it is 21 years. The marriage of any minor girl or boy is voidable and can be nullified at the instance of the minor on attaining the age of majority. Therefore there is a statutory consensus on the legal age of consent being 18 years and any one below the said age being a child.
The court considered the provisions as arbitrary and violative of child’s fundamental rights under Art.14, 15 and 21 of the Indian Constitution. It was held that Exception 2 to Section 375 does not apply in case of minors and raised the age of consent to 18 years for the purpose of the exception. It further called for legal reforms to prevent and address the violations with regard to girl child’s rights due to child marriage.
Independent Thought, a registered society that works for the child rights filed a writ petition in the apex court of our country Under Art.32 of the Indian Constitution in public interest with regard to the violation of the rights of girl child married between the ages of 15 to 18 years.
The petitioner contended that Section 375 of IPC prescribes the age for sexual intercourse as 18 years and above implying that any person having sexual intercourse with a girl child below 18 years of age would be statutorily guilty of rape even if such sexual activity was with her consent. Almost every statutory enactments in India recognizes that a girl below 18 years of age is a child and thus the law penalizes sexual intercourse with a girl who is below 18 years of age.
Unfortunately, as a consequence of Exception 2 to Section 375 of the IPC, if girl child between 15 and 18 years of age is married; her husband can have non-consensual sexual intercourse with her, without being penalized under the provisions of IPC, only because she is married to him and for no other reason. The right of such a girl child to her bodily integrity and to decline having sexual intercourse with her husband has been statutorily taken away and non-consensual sexual intercourse with her husband is not an offence punishable under the IPC.
Exception 2 to Section 375 thus violates the fundamental rights under Art.14, 15 and 21 of the Indian Constitution with regard to married minor girl child.
- Whether Exception 2 to Section 375 of IPC violates the fundamental right to equality under Art.14 of the Indian Constitution with regard to married girls between 15 to 18 years.
- Whether Exception 2 to Section 375 of IPC is arbitrary and violates the fundamental right under Art.1 5 of the Indian constitution
- Whether Exception 2 to Section 375 of IPC is violative of the fundamental right under Art.21 of the Indian Constitution.
Arguments in favour of the Petitioner
The arguments in favour of the petitioner include the following:
- Exception 2 to Section 375 of IPC is arbitrary, discriminatory and contrary to the beneficial intent of Art 15(3). Absolutely nothing is to be achieved by entitling the husband of a girl child between 15 to 18 years of age to have non-consensual sexual intercourse with her. The marital status of the girl child has no rational nexus with the unclear object of this provision.
- A sexual intercourse with a wife between the ages of 15 to 18 against her will is violative of human rights as defined under Sec 2(d) of The Protection of Human Rights Act, 1993 and Sec 3 of The Protection of Women from Domestic Violence Act, 2005.
- The Exception 2 to Section 375 of IPC gives the husband of a girl child between the age group 15 to 18 years complete freedom and liberty to have non-consensual sexual intercourse with his wife.
- The Law Commission of India in its 84threport stated that since the Child Marriage Restraint Act, 1929 prohibits the marriage of a girl below 18 years of age, sexual intercourse with a girl of that age should also be prohibited and IPC should reflect that position.
- Child marriage apart from violence leads to neglect, abandonment, low education, under nutrition, higher maternity mortality and infant mortality rates etc.
Arguments in favour of Respondents
The arguments in favour of respondents include the following:
- Child marriages are still prevalent in India and it is only voidable and are not void under The Prevention of the Child Marriage Act. So it is essential to retain the age of 15 under exception 2 of Sec 375 of IPC in order protect the husband and wife from being criminalized for the sexual activity between them.
- According to the reports of National Family Health Survey-III 46% of women between 18-29 years in India were married before the age of 18 and hence criminalizing the consummation of such marriage is not appropriate.
- Exception 2 of Section 375 of IPC envisages that if the marriage is solemnized at the age of 15 years in accordance with the traditions and customs, it should not be a reason to book the husband in the case of offence of rape under the penal law.
- Through the bond of marriage a girl child has either expressly or impliedly consented to sexual intercourse with her husband so the husband cannot be criminalized for the same.
- Child marriages have been an age old tradition performed in different parts of the country and such customs and traditions must be respected.
The judges while giving the judgment considered the following aspects:
- The National Charter for Children, 2003 recognized child marriage as a crime and an atrocity committed against the girl child. The National Policy for Children notified in 2013 states that every person below the age of 18 years is a child and that child has universal, inalienable and indivisible rights that include the right to life, survival, development, education, protection and participation.
- According to The Protection of Children from Sexual Offences Act, 2012 law should operate in such a manner giving utmost importance to the interest and well-being of the child. Sexual exploitation or sexual abuse of children are heinous crimes and need to be addressed. Moreover, if the husband of a girl child commits penetrative sexual assault on her, he actually commits aggravated penetrative sexual assault according to the provisions of the POSCO Act and is punishable for such an offence.
- The Convention on the Rights of the Child (CRC) makes all the member countries bound to undertake all appropriate national, bilateral and multi-lateral measures to prevent the coercion of a child to engage in any illicit sexual activity.
- Added to this Exception 2 to Section 375 of IPC is arbitrary and violates the fundamental rights under Art.14, 15 and 21 of the Indian Constitution.
- Exception 2 to Section 375 of IPC violates Art.14 of the constitution as the rationale of classification between a married and unmarried child has become non-existent making it arbitrary, unreasonable and violative of the doctrine of equality.
- Under Article 15(3), Parliament has powers to make legislation for the welfare of women and children. POCSO was such a prerogative of Article 15(3) by the legislature. POCSO provisions have overriding effect over any other law. There is an artificial distinction between rape of a married girl child and aggravated penetrative Sexual Assault which is completely arbitrary and discriminatory.
- Article 21 of the Constitution is violated as a girl child has a right to live with dignity which is violated by Exception 2 by destroying her bodily integrity and reproductive choice.
Therefore Exception 2 to Section 375 was altered and it reads as follows:
“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape”
The landmark case of Independent Thought vs. Union of India has taken a major step towards the protection of the girl child by criminalizing the sexual intercourse with a wife below 18 years. But, the Supreme Court had not laid down any special provision for dealing with those cases where the interest of other child is also at stake.
It did not consider those cases where the husband is also a minor and would be as innocent as the girl if have consensual sex with her. In the present day Indian society, cases of eloping and marriage are very prevalent; the Apex Court’s ignorance towards such cases just because they can be generalized under the child marriage cases is against the interest of the boy child. The Court also tried not to comment on “marital rape” issue where the girl is above 18 years by emphasizing that “marital rape” is not the issue before the court and judgment should not be observed in any way for the issue of “marital rape”. The reasoning court applied for concluding Exception 2 is violative of Fundamental Rights as it is equally applicable to a girl above 18 years old whose right to dignity is injured by the forceful sexual relation.
Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje