Independent Thought vs. Union of India  10 SCC 800
(Exception to Rape within Child Marriages)
Civil Original Jurisdiction
COURT : In The Supreme Court of India
CASE NO. : Writ petition (civil) no. 382 of 2013
PETITIONER : Independent Thought
RESPONDENT : Union of India , National Commission for Women
DATE OF JUDGEMENT : Decided on October 11th , 2017
BENCH : Madan B. Lokur J and Deepak Gupta J.
Petitioner :Gaurav Agrawal
Respondent : Rana Mukherjee
STATUTES USED :
- Indian Constitution 1950.
- Indian Penal Code 1860.
- The Protection of Human Rights Act, 1993.
- The Protection of Women from Domestic Violence Act, 2005.
- The Child Marriage Restraint Act, 1929.
- Juvenile Justice ( Care and Protection of Children) Act, 2015.
- The Protection of Children from Sexual Offences Act, 2012.
The petitioner, a registered association working for child rights, filed a writ petition under Article 32 of Indian constitution 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. The 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 with the case of Exception 2 to Sec 375 IPC, if a girl child between 15 and 18 years of age is married and her husband can have non-consensual sexual intercourse with her, without being punished under the IPC,and the only reason is that she is married to him and there is no other reason. The right of such a girl minor 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 considered as an offence under the IPC 1860. The provision is violative of rights of children and Article 14,15 and 21 of the Constitution of India of right to equality, rights against discrimination and the right to life respectively.
The provision is in contradictory to Section 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 POCSO 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”.
BRIEF FACTS :
The petitioner is a society which was registered on 6th August, 2009 and has since been working in the issues and the area of child rights. It is a National Human Rights organization who is the Petitioner. They provide all the technical and manual hand-holding support to non-governmental organizations as well as to the government and multilateral bodies in other States in India. This organisation has also been involved in legal intervention, researches and training courses, camps and other programmes on issues concerning the children and their rights. The society has filed a petition under Article 32 of the Constitution in public interest in challenging the legality and constitutionality of Exception 2 as it was both arbitrary and discriminatory towards the girl child 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 1860 , insofar as it relates to girls aged 15 to 18 years, is liable to be struck down as violative of Article 14, Article 15 and Article 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). Nothing is achieved by providing the title of husband to 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. (Exception 2).
2. The provision has placed the girl child at lesser advantage in the society, contrary to the statement and the beneficent philosophy propounded by Article 15(3) of the Indian Constitution.
3.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.
4. A forced sexual intercourse with a wife of a girl child between the age of 15 to 18 is also considered as violation of human rights as defined under Sec 2(d) of The Protection of Human Rights Act, 1993 as well as the Sec 3 of The Protection of Women from Domestic Violence Act, 2005.
5. Child marriage also leads to violence against the child especially girl child, neglection in the society and life, lower standard of education, under nutritional health of the child , higher Level of the maternity mortality of the girl child below 18 years and infant mortality rates etc
6. Even the statement of the Law Commission of India in its 84th report stated that since the legislation of the Child Marriage Restraint Act, 1929 prohibits the marriage of a girl child below 18 years of age, sexual intercourse with a girl of that age should also be prohibited and IPC should reflect that position in all other legislation and provisions.
Arguments in favour of the Respondent :
The arguments advanced in favour of the respondents are as follows:.
1. 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 consumption of such marriage is not appropriate. Hence this shall affect the marital life and the custom practices of the Indian girls.
2. Child marriages are still prevalent in India and it is only voidable not void under the legislation The Prevention of the Child Marriage Act. So it is necessary to maintain the age of 15 years under Exception 2 of Sec 375 of IPC so as to give the husband and wife with the protection from criminalizing the sexual activity between them. This disturbs the usual life structure of the society.
3. 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. There are many exceptions in law for the practices of customs and traditions along with the practices and the beliefs of the general people.
8. 167th report of the Parliamentary Standing Committee of the Rajya Sabha ( which is presented in March 2013) records that several members felt that marital rape has the potential of destroying the institution of marriage.
9. If the sexual intercourse of the married boy and girl from 15 years to the age of 18 years under the institution of marriage is prohibited, then there shall be many child abuses and increase in the rate of crimes in the society.
The following points are considered by Judges while delivering the judgment:
The National Charter for Children, 2003 perceived that child marriage is a wrongdoing and an abomination submitted against the girl child. Following the charter the National Policy for Children was informed in 2013 and it expresses that each individual beneath the age of 18 years is a child. Also, that each child has all inclusive, unavoidable and resolute rights including the privilege to life, endurance, advancement, instruction, assurance and cooperation.
The Protection of Children from Sexual Offenses Act, 2012 states that law ought to work in a way that the wellbeing and prosperity of the child be respected with principal significance. What’s more, sexual exploitation and sexual maltreatment of children are intolerable wrongdoings and should be viably tended to. Additionally, if the spouse of a girl child submits penetrative sexual ambush on his better half, he really submits irritated penetrative sexual attack as characterized in Sec. 5(n) of the POCSO Act and is culpable under Sec 6 by thorough detainment of at the very least ten years and may stretch out to detainment forever and fine.
The Convention on the Rights of the Child (CRC) under its Art 34 makes all the part nations bound to attempt all fitting national, two-sided and multi horizontal measures to forestall the coercion of a child to take part in any unlawful sexual action.
Under the Juvenile Justice ( Care and Protection of Children) Act, 2015 a girl child beneath 18 years old and who is tried to be hitched is a child needing care and insurance and accordingly required to be delivered before a Child Welfare Committee.
A Women’s entitlement to security, pride, real uprightness and right to conceptive decisions ought to be regarded. (Suchita Srivastava v. Chandigarh Administration, State of Maharashtra v. Madhukar Narayan Mardikar, Devika Biswas v. Association Of India)
Assault is egregious wrongdoing which damages the substantial respectability of a girl child, causes injury and pulverizes her opportunity of contraceptive decision is a composite issue that needs genuine thought and consultation. (Territory of Karnataka v. Krishnappa, Bodhisattwa Gautam v. Subhra Chakraborty, State of Punjab v. Gurmit Sigh)
The most suitable goals to the contention among IPC and POSCO Act been given by the State of Karnataka by embeddings sub-section(1A) in Sec 3 of PCMA pronouncing that each child marriage solemnized hereafter is void abdominal muscle intio and the spouse of the girl child is culpable under PCMA.
On considering these issues in detail the two appointed authorities have accompanied agreeing however separate judgment. It says that Exception 2 to Sec 375 IPC to the extent that it identifies with a girl child beneath 18 years is liable to struck down on the accompanying grounds:-
1. It is subjective and violative of privileges of girl child and not simply or sensible and in this way violative of Art 14, 15 and 21 of the Constitution of India.
2. It is conflicting with the arrangements of POSCO, which must win.
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.
Independent Thought case has made a significant move to secure the girl child by condemning the sexual intercourse with a spouse underneath 18 years. Be that as it may, the Supreme Court had not set out any uncommon arrangement for managing such situations where the interest of another child is likewise in question. It didn’t consider those situations where the spouse is additionally a minor and would be as guiltless as the girl if have consensual sex with her. In India, instances of eloping and marriage are exceptionally pervasive, the Apex Court’s obliviousness towards such cases since they can be summed up under the child marriage bodies of evidence is against the interest of the boy child. The Court likewise attempted to not remark on “marital rape” issue where the girl is over 18 years by underscoring that “marital rape” isn’t the issue under the steady gaze of the court and judgment ought not be seen at all for the issue of “marital rape”. The thinking court applied for reasoning that Exception 2 is violative of Fundamental Rights was similarly pertinent to a girl over 18 years of age whose privilege to pride is harmed by the commanding sexual relation.
LEGAL IMPORTANCE OF THE CASE :
This decision gives groundbreaking acknowledgment that kid marriage is connected to a continuum of sexual and regenerative well being hurt, infringing upon the administration’s commitment to guarantee young ladies’ privileges to contraceptive decision and real trustworthiness. The appointed authorities explicitly looked for proof identifying with the wellbeing dangers of assault inside kid marriage, and more than once refered to considers building up that kid marriage triggers genuine regenerative rights and other human rights infringement, including presenting young ladies to an expanded danger of constrained sex; early, visit, and unintended pregnancy; maternal mortality and horribleness; and explicitly transmissible diseases. The Court communicated worry that the young ladies most in danger of kid marriage were likewise the individuals who came up short on the data, instruction, and intentions to practice decision-production authority over their number of pregnancies and access to sustenance or social insurance.
The Supreme Court judgment expresses that given these wellbeing dangers, denying young ladies the capacity to reject sex inside marriage abuses their principal right to regenerative decision. It proceeds to confirm that this privilege must be enforced “even more” on account of wedded young ladies, who face dangers to their lives from early pregnancies coming about because of forced sex.
Author Details: J.Sneha and R.Yuvaraj (Saveetha School of Law)
The views of the author are personal only. (if any)