This article has been written by Arti Khaitan and edited by Shashwat Kaushik.

This article has been published by Sneha Mahawar.

Introduction 

Independent Thought vs. Union of India (2017), a landmark decision by the Apex Court that caused a significant and extensive change in Indian society. In this decision, the Apex Court provides protection to the lives of various girls who are married off at a young age and are subject to physical and mental abuse by their husbands. Also, the Apex Court upholds the rights of a girl child and defends the bodily integrity of every girl child. This article makes an effort to provide exhaustive knowledge about the findings of this decision in a simplified manner. 

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Facts of the case

The petitioner is a registered society and a non-profit organisation registered on August 6, 2009, working in the area of child rights. He filed a writ petition in the public interest under Article 32 of the Indian Constitution before the Supreme Court. The NGO is involved in various matters related to children, including but not limited to legal assistance, research, and training. It also provides technical and hand-holding assistance to various governmental organisations and multilateral bodies in several states.

The petitioner claims that the Indian Constitution’s Articles 14, 15, and 21 are violated by Exception 2 of Section 375 of the Indian Penal Code of 1860 (hereinafter referred to as the “IPC”). And therefore, the petitioner filed this writ petition and challenged the statutory provision, which violates the rights of married girls between the ages of 15 and 18 years. 

The petitioner claimed that, as per Section 375 of the IPC, a man who has sexual intercourse with a girl under the age of 18 is committing rape, whether with or without her consent. But unfortunately, by virtue of Exception 2 of Section 375 of the IPC, if a girl child between 15 and 18 years of age is married, her husband has non-consensual sexual intercourse with her and has not been criminalised under the IPC, only because she is married to him and for no other reason. 

Legal issues raised before the Supreme Court of India

  1. Whether sexual intercourse between a man and his wife, a girl between 15 and 18 years of age, would be rape?
  2. Whether Exception 2 to Section 375 of the IPC is unreasonable and creates an unnecessary distinction between married girls.

Arguments by the petitioner

The learned counsel of the petitioner argued that since Section 375 of the IPC makes it clear that sexual intercourse with a girl under the age of 18 constitutes rape, it is irrelevant whether she gives consent or not. But when girls between the ages of 15 and 18 automatically get psychologically and physically capable of engaging in sexual behaviour, only because “she is married.” 

The learned counsel further claimed that the Child Marriage Restraint Act, 1929, prohibited the marriage of girls under the age of 18 and that it prohibited having sexual relations with girls under the age of 18 as well. And therefore, the minimum age of marriage as laid down by law (after 1978) is 18 years. 

In addition, learned counsel stated that Exception 2 to Section 375 of the IPC is not only arbitrary but also discriminatory in light of Article 15(3) of the Constitution, which instructs the Parliament to make special provisions for women and children but instead of making provisions for uplifting them, the girl child is placed at a great disadvantage, which is contrary to the vision and beneficiaries offered in Article 15(3) of the Constitutional Law. 

According to the petitioner, there is apparent discrimination between married and unmarried girls between the ages of 15 and 18. In the case of a married girl, if a man has sexual intercourse with his wife even without her consent, it does not count as rape, but in the case of an unmarried female, if a man has sexual intercourse with a girl even with her consent, it amounts to rape.  

The learned counsel of the petitioner further argued that if a girl child faces forced sexual intercourse by her husband, it violates her liberty and dignity and does amount to a violation of the human rights defined under Section 2(d) of the Protection of Human Rights, 1993.

The counsel further emphasises that under the Prohibition of Child Marriage Act, 2006, a male who has not completed the age of 21 and a female who has not completed the age of 18 are considered children. Additionally, the child marriage may be dissolved at the discretion of either party. In addition, child marriage has negative effects on one’s health, such as early pregnancy, maternal and neonatal death, education losses, etc. Although it does not violate human rights, child marriage is seen as a barrier to young people’s growth.  

Arguments by the respondent

The learned counsel of the respondent argued that child marriage is still a problem in the country, as the country’s economic and educational advancement are both staging and not improving. In order to safeguard the rights of husband and wife in criminalising sexual actions between them, they agreed to maintain the age of 15 years specified in Exception 2 of Section 375 of the IPC.

According to the National Health Survey Report, in India, 46% of the women between the ages of 18 and 29 were already married before turning 18. It is also estimated that there are 23 million child brides in the country. Since rape is such a horrific and heinous crime, criminalising marriage completion and linking it to it would be wholly incorrect and impractical. 

While considering India’s socioeconomic situation, it would be inappropriate to punish child marriage as per Exception 2 to Section 375 of the IPC because it has long been a common practise that is based on social norms and basic facts as well as tradition.

The Law Commission of India recommended in their report that the age be raised from 15 to 16 years old, but it was agreed to keep it at 15 years old following extensive debate with various stakeholders. 

According to Exception 2 of Section 375 of the IPC, if the marriage is solemnised at the age of 15 out of custom, it should not be a justification to charge the husband with rape under the IPC. Because it is required that laws be developed in accordance with standards that do not negatively impact a particular class or community, taking into account social and historical traditions and norms, the 15-year limit should remain in Exception 2 to Section 375 of the IPC.

Further, the learned counsel of the respondent argued that child marriages have historically taken place in many regions of the nation, and as a result, these traditions should be upheld rather than shattered.  In addition, by marriage, the girl consents expressly and impliedly to having sexual intercourse. 

Ratio decidendi

Justice Madan B. Lokur

The Apex Court held that a child below the age of 18 is entitled to the protection of her human rights, including the right to live with dignity and she must be safeguarded from domestic violence as well. He cited the Law Commission of India’s 172nd report, the Human Rights Council, the Protection of Human Rights Act of 1996, and the Juvenile Justice (Care and Protection of Children) Act of 2015.

According to the Protection of Children from Sexual Offences Act, 2012, it is a crime for a girl’s husband to engage in sexual behaviour with her and engage in penetrative sexual assault. Exception 2 of Section 375 IPC, which is not rape as defined under this exception, is found further in the framework of pro-child legislation. In order to empower women and stop their socioeconomic adversity, which might lead to gender equality, Article 15(3) of the Constitution was introduced.

Furthermore, women have the right to reproductive choice as a personal liberty defined under Article 21 of the Indian Constitution. He also highlights that if a man has sexual intercourse with a girl child between the ages of 15 and 18, he has not committed rape as defined under Section 375 of the IPC but he is said to have committed aggravated penetrative sexual assault under Section 5(n) of the POCSO Act. 

Justice Deepak Gupta

According to him, Articles 14 and 21 of the Indian Constitution are key topics. The legislative history is explicit in stating that a person below the age of 18 is a child who is not fully developed and who is otherwise unable to give consent to have sex with her husband. Additionally, the court is always makes a presumption of the constitutionality of the legislation

He further highlighted that Parliament has the power to raise the age of consent under clause 6 of Section 375 of the IPC and determine the minimum age of marriage as well. And emphasise that a person under the age of 18 is considered a child unable to look out for his or her own interests under the Protection of Children from Sexual Offences Act of 2012, the Juvenile Justice (Care and Protection of Children) Act of 2015, the Child Marriage Restraint Act of 1929, the Protection of Women from Domestic Violence Act of 2005, the Majority Act of 1875, the Guardians and Wards Act of 1890, the Indian Contract Act of 1872, and many other laws.

In addition, he also laid down that, after examining the numerous data and reports presented before him, it is evident that child marriage not only violates the child’s human rights but also impacts their health.

He further ruled that the state would not take a defence of tradition and customary marriage in respect of a girl child, which would be totally a violation of Articles 14, 15, and 21 of the Indian Constitution. As a result, this Court believes that Exception 2 to Section 375 IPC is arbitrary since it violates the values entrenched in Articles 14, 15, and 21 of the Indian Constitution.

Analysis of the judgement

The Apex Court ruled that child marriage is an abhorrent practise and that it violates the child’s human rights. It does not imply that more child marriages are occurring, and the act would not be made illegal. Additionally, it was stated that since the age of consent is statutorily and unquestionably set at 18. An act that is per se illegal and a criminal offence cannot be legitimised and made legal only because it has been occurring for a long time. The same point was addressed by the Law Commission of India in its 172nd report, noting that a customary practice that is permitted under the IPC contradicts a girl child’s right to protect her physical integrity, health, and development.

The Supreme Court further emphasised that while engaging in sexual activity with his female spouse does not necessarily constitute rape under the IPC, it does constitute a criminal offence under the POCSO Act. The Supreme Court ruled that Exeception 2 of Section 375 of the IPC is discriminatory and unlawful, and that it grants immunity to the husband. If the husband beats a girl child and has forcible sexual intercourse with her, he may be charged for the other offences (IPC, etc.), but he cannot be charged with rape. It is illogical to offer such immunity to the husband exclusively in cases of rape, especially when the “victim wife” is under the age of 18 years. 

Therefore, it is seen that Exeception 2 of Section 375 of the IPC is arbitrary and discriminatory, and it violates the rights of a girl child under Articles 14, 15 and 21 of the Indian Constitution. It means that if any law or rule violates any provision of the constitution, it will obviously be repealed or declared unconstitutional. 

Conclusion

In order to protect the bodily integrity and dignity of a girl’s child, the Supreme Court passed a landmark decision on August 11, 2017, upholding that any sexual intercourse between a man and his girl wife before the age of 18 constitutes rape. Additionally, it should be noted that this decision will have prospective effects, meaning that it is now a serious crime to engage in such behaviour. By quashing Exception 2 of Section 375 of the IPC, the Court established the principle of equality and granted girls the same rights as boys. In this historic judgement, the Supreme Court saved the lives of numerous young girls. The Apex Court also appreciates the petitioner who presented this bigger social issue before them, which infringes on the rights of numerous girls.

References

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