In The Supreme Court of India Civil Original Jurisdiction Case No. Writ petition (civil) no. 382 of 2013 Petitioner Indepemdent Thought Respondent Union of India Date of Judgement Decided on October 11th , 2017 Bench Madan B. Lokur J and Deepak Gupta J.
The petitioner a registered society working for child rights, filed a petition under Art 32 in public interest with a view to draw attention to the violation of the rights of girl children married between the ages of 15 and 18 years. Sec 375 of IPC prescribes the age of consent for sexual intercourse as 18 years thereby any person having sexual intercourse below 18 years of age would be statutorily guilty of rape even if with the consent of the girl.
But by Exception 2 to Sec 375, if a 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 IPC, only because she is married to him and for no other reason. The right of such a girl child to bodily integrity and to decline to have sexual intercourse with her husband has been statutorily taken away and non-consensual sexual intercourse with her husband is not an offence under the IPC. The provision is violative of rights of children and Art 14,15 and 21 of the Constitution of India.
The provision is in contradictory to Sec 5 and 6 of the POSCO Act, it states that if the husband of a girl child commits penetrative sexual assault on his wife, he actually commits aggravated penetrative sexual assault as defined in Sec. 5(n) of the POSCO Act and is punishable under Sec 6 by rigorous imprisonment of not less than ten years and may extend to imprisonment for life and fine.
Finally the Court observed that the provision is arbitrary and violative of child rights and Art 14, 15 and 21 of the Constitution. It was also found to be in contravention to the provisions of POSCO Act, which will prevail over the other laws. Then the Court brought a harmonious interpretation of the two provisions and held that “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 petitioner is a society registered on 6th August, 2009 and has since been working in the area of child rights. The society provides technical and hand-holding support to non-governmental organizations as also to government and multilateral bodies in several States in India. It has also been involved in legal intervention, research and training on issues concerning children and their rights. The society has filed a petition under Article 32 of the Constitution in public interest with a view to draw attention to the violation of the rights of girls who are married between the ages of 15 and 18 years.
According to the petitioner, Section 375 of the IPC prescribes the age of consent for sexual intercourse as 18 years meaning thereby that any person having sexual intercourse with a girl child below 18 years of age would be statutorily guilty of rape even if the sexual activity was with her consent. Almost every statute in India recognizes that a girl below 18 years of age is a child and it is for this reason that the law penalizes sexual intercourse with a girl who is below 18 years of age. Unfortunately, by virtue of Exception 2 to Section 375 of the IPC, if a 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 IPC, only because she is married to him and for no other reason. The right of such a girl child to bodily integrity and to decline to have sexual intercourse with her husband has been statutorily taken away and non-consensual sexual intercourse with her husband is not an offence under the IPC.
1. Whether Exception 2 to Sec 375 of the Indian Penal Code, in so far as it relates to girls aged 15 to 18 years, is liable to be struck down as violative of Art 14, 15 and 21 of the Constitution.
Arguments in favour of the Petitioner
The arguments advanced in favour of the petitioners are as follows;
1. Exception 2 to Sec 375 of IPC is arbitrary, discriminatory and contrary to the beneficial intent of Art 15(3).Absolutely nothing is achieved by entitling the husband of a girl child between 15 and 18 years of age to have non-consensual sexual intercourse with her. The marital status of the girl child between 15 and 18 years of age has no rational nexus with the unclear object of this provision.
2. The provision has placed the girl child at great disadvantage, contrary to the visionary and beneficent philosophy propounded by Art 15(3) of the Constitution.
3. A forceful sexual intercourse with a wife between the age of 15 to 18 is also 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.
4. The provision results in a situation in which the husband of a girl child between 15 and 18 years of age has blanket liberty and freedom to have non-consensual sexual intercourse with his wife.
5. Law Commission of India in its 84th report 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.
6. Child marriage also leads to violence, neglect, abandonment, low education, under nutrition, higher maternity mortality and infant mortality rates etc
Arguments in favour of the Respondents
The arguments advanced in favour of the respondents are as follows:.
1. Child marriages are still prevalent in India and it is only voidable 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 so as to give protection to the husband and wife against criminalizing the sexual activity between them.
2. National Family Health Survey-III says that 46% of women between 18-29 years in India were married before the age of 18 and hence criminalizing the consummation of such marriage not be appropriate.
3. Providing punishment for child marriage with consent does not appear to be appropriate in view of socio-economic conditions of the country.
4. Exception 2 of Section 375 of IPC envisages that if the marriage is solemnized at the age of 15 years due to traditions, it should not be a reason to book the husband in the case of offence of rape under the IPC.
5. The provisions of law should be in such a manner that it cannot affect a particular class of society and Exception 2 of Sec 375 has been provided considering the social realities of the nation.
6. By virtue of getting married the girl child has consented to sexual intercourse with her husband expressly or by necessary implication.
7. Child marriages have been traditionally performed in different parts of the country and such traditions must be respected.
8. 167th report of the Parliamentary Standing Committee of the Rajya Sabha (presented in March 2013) records that several members felt that marital rape has the potential of destroying the institution of marriage.
The judges while giving the judgment has considered the following points;
- The National Charter for Children, 2003 recognized that child marriage is a crime and an atrocity committed against the girl child. Following the charter the National Policy for Children was notified on 2013 and it states that every person below the age of 18 years is a child. And that every child has universal, inalienable and indivisible rights including the right to life, survival, development, education, protection and participation.
- The Protection of Children from Sexual Offences Act, 2012 states that law should operate in a manner that the best interest and well being of the child be regarded with paramount importance. And sexual exploitation and sexual abuse of children are heinous crimes and need to be effectively addressed. Moreover, if the husband of a girl child commits penetrative sexual assault on his wife, he actually commits aggravated penetrative sexual assault as defined in Sec. 5(n) of the POSCO Act and is punishable under Sec 6 by rigorous imprisonment of not less than ten years and may extend to imprisonment for life and fine.
- The Convention on the Rights of the Child (CRC) under its Art 34 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 unlawful sexual activity.
- Under the Juvenile Justice ( Care and Protection of Children) Act, 2015 a girl child below 18 years of age and who is sought to be married is a child in need of care and protection and therefore required to be produced before a Child Welfare Committee.
- A Women’s right to privacy, dignity, bodily integrity and right to reproductive choices should be respected. (Suchita Srivastava v. Chandigarh Administration, State of Maharashtra v. Madhukar Narayan Mardikar, Devika Biswas v. Union Of India)
- Rape is a heinous crime which violates the bodily integrity of a girl child, causes trauma and destroys her freedom of reproductive choice is a composite issue that needs serious consideration and deliberation. (State of Karnataka v. Krishnappa, Bodhisattwa Gautam v. Subhra Chakraborty, State of Punjab v. Gurmit Sigh)
- The most appropriate resolution to the conflict between IPC and POSCO Act been provided by the State of Karnataka by inserting sub-section(1A) in Sec 3 of PCMA declaring that every child marriage solemnized henceforth is void ab intio and the husband of the girl child is punishable under PCMA.
On considering these matters in detail the two judges have come with concurring but separate judgment. It says that Exception 2 to Sec 375 IPC in so far as it relates to a girl child below 18 years is laible to struck down on the following grounds:-
1. It is arbitrary and violative of rights of girl child and not just or reasonable and therefore violative of Art 14, 15 and 21 of the Constitution of India.
2. It is inconsistent with the provisions of POSCO, which must prevail.
Therefore, Exception 2 to Sec 375 is read down 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”
However, it was clearly stated that the judgment will have only prospective effect.
It is also clarified that Sec 198(6) of the Code will apply to cases of rape of “wives” below 18 years, and cognizance can be taken only in accordance with the provision of Sec 198(6) of the Code.
In India a marriage with a girl below 18 years of age is punishable (only voidable) under the PCMA. But if the husband of a girl child commits penetrative sexual assault on his wife, he actually commits aggravated penetrative sexual assault punishable under Sec 6 of the POSCO Act. However IPC by virtue of Exception 2 to Sec 375 makes sexual intercourse with one’s wife below 18 years of age, not punishable and an exception to the offence of rape. The two provisions are contradictory in nature and the same needs to be resolved.
The Harmonious interpretation employed by this Court in this regard is not at all an apt solution to the problem. Because this new reading of the provision can in no way protect child brides from the huge emotional and physical turmoil that they face as a result of the early marriage. A very good option would have been to make child marriages void ab intio ( as provided by the State of Karnataka) and then invalidating Exception 2 to Sec 375 of IPC.
Moreover the justifications like child marriage is a tradition and it is prevalent in many parts of the country is no good justification to continue such exploitative practices and it’s the need of the hour to regulate such practices by law.