Citation: (2017) 10 SCC 800
Court: Supreme Court of India
Coram: Justice Madan B. Lokur and Justice Deepak Gupta
Theme: Marital Rape of Child Brides
Subject: Criminal Law
“It’s not consent if you make me afraid to say no” — Anonymous
The Indian Penal Code, 1860 (hereinafter referred to as, IPC) defines the term ‘Rape’, as under Section 375. When a woman’s consent, regarding her own body is disregarded in order to indulge a man’s carnal appetite, this provision intervenes to bring the aforementioned man to justice. In India, where the age of consent for sexual intercourse is 18 years, a girl child between the ages 15 to 18, if married, loses her right to call herself a child and with it all the protections granted to a minor as against sexual violations. Exception 2 of Section 375 had assured it. It reads “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
A stark difference was seen in the administration of justice by the law while treating kids of the same age, of whom, one happened to have the misfortune of being born in a situation, which demanded her surrender to the pathos of social dogma. Not only did she get to enjoy the marvellous problems life threw at her, but as a special bonus, she wasn’t even allowed to call them such until the reading down of the Exception.
India has always been a nation, distinguished for its renowned diversity. It comprises people of different religions, ethnic backgrounds and unifying a country like India is an arduous task. Even after the introduction of the Indian Constitution, several personal laws have retained their application within the domain of certain specific sects and communities. Customs have always been an integral source of personal law. They are socially approved practices that have garnered prominence since time immemorial. Thereby bringing about a potent bond between society and the law of the land. Legal principles and conventions have minimal worth unless and until they come into possession of the allegiance of the common people.
This paper attempts to scrutinise and understand the various aspects which led to the passing of the historic judgement that set a milestone in the history of protection of child rights in India. It also tries to elucidate the differential nature of Exception 2 to Section 375 and how it posed as a barrier in the realisation of equal treatment and reigning of ethical justice in the country.
Facts of Independent Thought v. Union of India & Anr.
Independent Thought is an organization working in the sector of Child Rights, registered on 6th Aug. 2009. The organization filed a PIL (W.P. (C) 382/2013) under Article 32 of the Constitution of India to attract attention to the conspicuous disparity of treatment and violation of the rights of married minor girls (between the ages 15 and 18). Child Rights Trust, an organization based in Karnataka, joined as an intervener and was represented by the Centre for Law and Policy Research.
Section 375 of the Indian Penal Code stipulates the age of consent to be 18 years, and engaging in sexual activity of any kind below the prescribed age, draws the charge of ‘Statutory Rape’ (irrespective of the girl’s consent).Almost every Indian statute recognizes the minority status of a girl below the age of 18.
Hence the law criminalizes sexual intercourse with a girl child of such age margin, regardless of her consent. Unfortunately, Exception 2 to Section 375 of the IPC provides a loophole. If the girl child is between 15 to 18 years of age and is married, her husband can indulge in non-consensual sex with her, without being subjected to the penalization as under the IPC. This is possible only due to the presence of the marital bond between them. The right of such a child to her bodily integrity is crushed under the weight of this exception and the right to deny to have sexual intercourse with her husband has been statutorily taken away.
The issue had been whether the Exception 2 to Section 375 of the IPC, was violative of Articles 14, 15 and 21 of the Constitution and was liable to be struck down. On one hand, there is a penalization for having sexual intercourse with a minor girl, the act being consented to, by her. On the other hand, a man could get away after having sexual intercourse with a minor girl against her wishes, provided the girl was married to the perpetrator and her age was above 15. This ambivalent stance of the penal statutes was being rampantly abused and misused. The Government of India opposed modifying the exception, stating that its justification could be well ascertained in respect for tradition, an assumption of sexual consent arising out of marriage. The concern that the recognition of marital rape would “destroy the institution of marriage” had been firmly disputed before the bench.
Issues in Independent Thought v. Union Of India & Anr.
- Whether Exception 2 to Section 375 of the Indian Penal Code, concerning girls aged 15 to 18 years, is liable to be struck down for being violative of Article 14, 15 and 21 of the Constitution of India?
- Whether there can be an exception in the Indian Penal Code with respect to the age of consent, which has been decided to be 18 years for girls in all the other statues?
The counsel for the petitioner had evinced how an aspect of marital status stood as a vicious hindrance in matters of protecting the bodily right and integrity of girls between the age of 15 and 18.
That Exception 2 to Section 375 of the IPC stood as a legal encumbrance upon the morality of an act where the mere absence of consent effectuates it into one of the most detested offences.
That the equivocal objective of the challenged provision is devoid of any justifiable correlation with the marital status of the girls of the said age group.
The counsels also evoked the attention of the Court to the 84th Report of the Law Commission of India presented on 25th April 1980 whereby it was deliberated that the present provision represented a stark anomaly since marriage was prohibited below the age of 18 but marital sex even non-consensual evaded the ambit of penal measures.
The counsel for both the petitioner and the Intervener called attention to several studies that alluded to the despicable state to which these girls were subjected by the aforementioned provision. Various reports prepared by the UNICEF as well as analysis based on Census 2011 discerned the appalling mental disposition of these victims and the traumatized future they were forced into.
References were made to several statutes such as the Juvenile Justice (Care and Protection of Children) Act, 2012(hereinafter referred to as, “JJ”), the Protection of Children from Sexual Offences Act, 2012(hereinafter referred to as, “POCSO”), and the Prohibition of Child Marriage Act, 2006(hereinafter referred to as, “PCMA”). Touching on the Prohibition of Child Marriage Act, 2006, a marriage contracted between two parties where either of them is a minor is declared to be voidable and such marriages fall within the scope of being nullified by the contracting party who was a minor at the time of marriage. Thereby these legal provisions vividly imply that the age for legal consent is 18 years and anyone below the said age should be rightly referred to as a child. Thereby the petitioner had meticulously pointed out the stark contradiction that had been developed between married and unmarried girls by the contended penal provision and that such provision was devoid of any rational justification.
The counsels made close perusals of the deliberations of the Constituent Assembly and the much-envisaged Article 15(3) of the Constitution of India which quite efficaciously upholds the significance that was laid down in enacting legislation concerning the protection of women and children. One of the prime examples being the POCSO Act, 2012. Section 3 of the said Act is analogous to the provision of Rape as defined in Section 375 of the IPC. Nevertheless, the same act stands as an exception and goes unpunished in the Indian Penal Code which signifies an apparent contradiction. Such a blatant inconsistency turned out to be an undesired gateway for the perpetrators which was a complete infringement of the Constitutional morality.
The counsels for the petitioner contended that the said provision was an overt transgression of one’s reproductive rights whose presence is completely abominable in any civilised society. Such legal flaws furthered social menace and subjected these girls to unwanted pregnancies, maternal mortality and inordinate amounts of sexual violence. Hence, it led to innumerable repercussions, ranging from degradation of mental health to reproductive deformities.
The counsel for the respondents unveiled certain alarming statistics that were disclosed by the National Family Health Survey- 3 (of 2005). It was observed that 46% of women in the country between the ages of 18 and 29 were married before the age of 18 years and that there were 23 million child brides in the nation. It was contended that the expulsion of the challenged provision would amount to a sudden upheaval in the dynamics of social and spousal relations.
The aspect that child marriages were still voidable and not void ab initio was brought up by the opposing counsel. Under such circumstances, the removal of the provision would seem incongruous and the disparity would result in social disharmony.
In lieu of the socio-economic conditions of the country, removal of the decriminalising clause seems to be unbefitting. The economic and educational status of the majority of the population is still lagging, which further substantiates and espouses the claim of the opposition.
Child marriage has been an old-aged tradition in the Indian society and the marriage being solemnised with consent should not serve as a rationale for penalising the husband who himself has been shackled in these conventional social norms.
That the Law Commission had recommended a raise of the age in the disputed. Exception from 15 to 16 years and it was incorporated in the Criminal Law (Amendment) Ordinance, 2013. Nevertheless, the former parameter of 15 years was retained after multiple deliberations among various stakeholders.
The respondent counsel portrayed the repercussions of considering the petition and thus encapsulated the existing social framework and how the dismissal of the said Exception would lead to detrimental consequences and social havoc.
Judgment: Independent Thought v. Union Of India & Anr.
On October 11, 2017, a momentous judgment was pronounced by the Supreme Court of India in the landmark case, Independent Thought vs. The Union of India &Anr., the Bench consisted of Justice Madan B. Lokur and Justice Deepak Gupta. The two judges wrote separate judgments amounting to 127 pages. The court read down the Exception 2 to Section 375 (rape) of the IPC, which aided in discriminatory treatment of minor girls based on their marital status.
Justice Madan B. Lokur wrote, “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.”
In order to bring harmony with the law, Justice Lokur opined that Exception 2 to Section 375 of the IPC will subsequently be read stating that sexual intercourse with a wife who is not below 18 years is not rape. It was emphasized that the much controversial Exception 2 led to a gross violation of one of the most cherished Fundamental Right, which is the right to live with dignity. One’s bodily integrity and reproductive choice cannot be compromised with, under any circumstances.
“I am not oblivious to the harsh reality that most of the child brides are even below the age of 15 years. There is a practice in many parts of the country where children, both girls and boys, are married off, even before they attain puberty. They are innocent children, who do not even understand what marriage is,” Justice Deepak Gupta wrote in a separate judgment and rued the abysmal amounts of prosecutions and annulments of marriages recorded under the PCMA. He further expounded that Exception 2 of Section 375 is a law, violative of the following Fundamental Rights granted to all the citizens of India and for whose protection it is the duty of the Court to either read them down or strike them down
- Article 14 of the Constitution: Discriminative nature of the exception which differentiates between its treatment of girls of the same age based on their marital status.
- Article 15 of the Constitution: Negative law affecting a citizen’s life adversely and not be corrected due to lack of funds of the State.
- Article 21 of the Constitution: Destructive of a person’s right to live with dignity, which includes the right to be able to grow and develop physically, mentally and economically as an independent self-sufficient female adult?
The apex court of India verbalized for the very first time the government’s constitutional and human rights obligation to address child marriage and to respect the rights of married girls. In India, disturbingly, where 23 million girls are child brides, letting this injustice to continue would be a grave failure on the part of the nation to protect its children. A pattern has arisen which shows that married minor girls are more vulnerable to rape than married women (above the age of 18 years). This legal step seeks to curb the degree of susceptibility of such a girl child.
While deliberating upon Article 15(3) of the Constitution, the Bench touched on several cases, such as Government of A.P. v. P.B. Vijayakumar and Sri MahadebJiew v. Dr B.B. Sen. In the latter case, the Calcutta High Court had deliberated on the context of “special provision” and had held that the special provision on women under the said Constitutional provision can never be resorted to authorizing any discriminatory act against women, as the term “for” in the present context means “in favour of”. Upholding the aforesaid view, the Division Bench in the present case reiterated the cardinal objective of the aforementioned Article and substantiated on the Constitutional infringement caused by Exception 2 of Section 375 of the IPC.
References were made to the landmark cases of State of Maharashtra v. Madhukar Narayan Mardikar and Suchita Srivastava v. Chandigarh Administration. In the former, the Apex Court had held that no one has any right to violate the person of anyone else, while in the latter one, the Court had emphasized on the right to make a reproductive choice and had placed it on an equal footing with personal liberty under Article 21 of the Constitution.
Delving into the penal aspect of marital rape, the Bench alluded to various foreign judgments, such as C.R. v UK and Eisenstadt v. Baird. The latter judgment had quite starkly pointed out how a married couple should be viewed as an association of two individuals, each possessing a separate intellectual and emotional makeup. The Court asserted upon the joint inference that could be drawn by the combined reading of the aforementioned foreign judgments, which established the fact that a rapist remains a rapist and marriage with the victim does not convert him into a non-rapist.
The Division Bench harped on the fact that the rationale behind any enactment might get attenuated over time, as had been laid down in the case of Satyawati Sharma v. Union of India. That being so, it inevitably articulates the exigency of the Court to constructively interpret the statutes involved, herein being, the JJ Act, the POCSO Act, the PCMA and Exception 2 of Section 375 of the IPC, for purposive and harmonious construction. It was said by Lord Denning that when a defect appears, a judge cannot fold his hands and blame the draftsman but must also consider the social conditions and give force and life to the intention of the Legislature. In consonance to the saying, the court referred to landmark judgments such as Collector of Customs v. Digvijaya Singhji Spinning & Weaving Mills and Jugal Kishore v. the State of Maharashtra, asseverating that a constructive attitude should be adopted in interpreting statutes.
In the formulation of the said judgment, the Convention on the Rights of the Child (CRC) was also alluded to. In accordance with Article 34 of the said Convention, all the member nations are bound to consider all necessary national, bilateral and multilateral measures to prevent any child from being forced into any unlawful sexual activity. The National Charter for Children, 2003 was also touched on, during the judicial proceeding. Following the introduction of the aforementioned charter, the National Policy for Children was notified in 2013 which asserted that every individual below the age of 18 years is a child. Every such child has certain fundamental and inalienable rights including the right to life, protection, development, education. The Court further elucidated that Section 198(6) of the Code will pertain to cases of rape of “wives” below 18 years, and in such due course, cognizance can only be considered as per the above-said Section.
Thereby, the decision unequivocally elucidates the supreme law of our land, which conscientiously upholds an equal footing for both men and women and reiterates that no statute must ever be interpreted in such manner which might denigrate or disparage the Constitutional framework. Any legislative provision which endorses such an unconstitutional myth must be snuffed out at the earliest.
In closing, the Court declared that the judgment will not have any retrospective effect.
Present Status of the Judgment:
The decree passed in the Supreme Court by the Division Bench comprising Justice Madan B. Lokur and Justice Deepak Gupta, in the case of Independent thought v. Union of India and Another is still in force and has not been overruled till date. The Court had thereby struck down the challenged Exception to the penal provision. The responsibility of repealing the discarded provision from the penal statute solely lies on the Central Legislature. Nevertheless, no such Amendment has been hitherto effectuated in consonance to the abovesaid judicial decision.
The ground-breaking judgment in the case of Independent Thought v. Union of India paved the way to secure the loopholes in the law that stood as a hindrance in the protection of the rights of the girl child. It dealt with the ambiguity that plagued this provision and furthermore ensured that the girl child is well protected from the endurance of sexual violation. A disparity arose out of a direct conflict between the operation of the IPC and that of the PCMA and the POCSO Act. On one hand, the rudimentary provisions of the aforementioned enactments superintended the avenue of child rights, on the other hand, the IPC, while dictating the age of consent for sexual intercourse to be 18, simultaneously found it permissible for child brides (ages 15-18 years) to be subjected to the trauma of undergoing sexual abuse by their husbands and it would not be called ‘rape’.
Hence, the reading down of the Exception in question proved as a major milestone in the way of securing the rights of the girl child and made an enormous attempt at denting the practice of child marriage and their subsequent exploitation. Consummation of marriage with a minor wife has now been ruled as illegal under Section 375 of the Indian Penal Code and would now fall within the very ambit of “rape”. This will act as a strong deterrent for those men who might have a propensity of marrying a minor. The possibility of being branded as a rapist and facing criminal charges ensure a degree of control in the minds of the common men.
India propounds herself as an up-lifter of human rights in the world. However, the fact remains that the learned counsel representing the Indian Government pleaded that the criminalization of child marital rape would tear through the traditions followed in India and adversely affect the institution of marriage. The sentiments and contentions echoed by the Central Government in the highest judicial institution of the country suggest that achieving such an epithet for the country would be no less than a “Herculean Labour”. The Hon’ble Court had rightly condemned the regressive aspect of such arguments and reproved the attitude of the Government. In the 21st century, where marriage is a bond among equals, such an approach could only inhibit the progress of our nation and take us back to medieval times. The Hon’ble Supreme Court of India has done its part in assuring that such grave injustice is constrained in its perpetuation.
 The Indian Penal Code (45 of 1860), as amended by The Criminal Law (Amendment) Act, 2018 (22 of 2018). Independent Thought v. Union of India &Anr., W.P. (Civil) No. 382 of 2013, decided on October 11, 2017 (Madan B. Lokur and Deepak Gupta JJ) (hereinafter, Independent Thought) (AIR 2017, 10 SCC 800).  The official Independent Thought website: http://www.ithought.in/.  Scanned copy of the PIL submitted (under article 32 of the Constitution of India) to the Supreme Court of India, http://www.ithought.in/a/in_img/IndependentThought2013.pdf.  The Indian Penal Code (45 of 1860), as amended by The Criminal Law (Amendment) Act, 2018 (22 of 2018).  The Indian Majority Act, 1875, Act no.9 of 1875 [as in 1957].  Section 375(6)The Indian Penal Code (45 of 1860), as amended by The Criminal Law (Amendment) Act, 2018 (22 of 2018).  Exception 2, Section 375, The Indian Penal Code (45 of 1860), as amended by The Criminal Law (Amendment) Act, 2018 (22 of 2018). Independent Thought, (AIR 2017 10 SCC 800), at p.32, para 52. Supra note 10, para. 91 (Lokur J.) (Senior Advocate Rana Mukherjee, referencing the 167th report of the Parliamentary Standing Committee, para. 5.9). P.V. Dixit, J., 1980. 84th Indian Law Commission Report. Rape and Allied Offences: Some Questions of Substantive Law, Procedure and Evidences. [online] Available at: http://lawcommissionofindia.nic.in/51-100/Report84.pdf. The Protection of Children from Sexual Offences Act, 2012 [Act 32 of 2012, dt. 19-06-2012] As Amended by The Criminal Law (Amendment) Act, 2018, (Act 22 of 2018) dt. 11-08-2018, w.e.f. 21-04-2018. The Juvenile Justice (Care and Protection of Children) Act, 2015, Act No. 2 of 2016, Acts of Parliament, 2015 (India). The Prohibition of Child Marriage Act, 2006, Act No. 6 of 2007, Acts of Parliament, 2015 (India). https://dhsprogram.com/pubs/pdf/FRIND3/FRIND3-Vol1AndVol2.pdf. Section 8, The Criminal Law (Amendment) Ordinance, 2013 (No. 3 of 2013).  AIR 2017, 10 SCC 800. AIR 2017, 10 SCC 800 at p.47, para 78. Id. at p.1, para 1. Id. at p. 105, para 57. Id. at p. 112, para 67-69. Id. at p.114, para 71. Id. at p. 113-114, para 70. Id. at p. 8, para 10.  (1995) 4 SCC 520.  AIR 1951 Cal 563.  (1991) 1 SCC 57.  (2009) 9 SCC 1.  C.R. v UK Publ. ECHR, Ser.A, No. 335-C.  405 US 438, 31 L Ed 2d 349, 92 S Ct 1092.  (2008) 5 SCC 287. AIR 1961 SC 1549. 1989 Supp (1) SCC 589. AIR 2017, 10 SCC 800 at p. 22, para 33. Id. at p. 15, para 18. Id. at p.16, para 20. Id. atp.86, para 26. Supra note 39 at p.126, para 88. AIR 2017, 10 SCC 800 at p.27, para 43; id. at p.8, para 10. Id. at p.32, para 52. Id. at p.69, para 105. Id. at p.51, para 81. Id. at p.52, para 83.
Contributed by: Md Zeeshanuz Zaman and Swati Banerjee (Students, Department of Law, University of Calcutta)
The views of the author are personal only. (if any)