This article is written by Deepanwita Sengupta.
The apex court’s division bench in this 2018 landmark case held that sexual intercourse with a girl below the age of eighteen years is rape irrespective of whether she is married or not and Exception 2 of S- 375 under Indian Penal Code 1860 is violative of the rights to equality and non-discrimination. It held that this classification of married girl child violates the right to life of those between 15 and 18 years of age.[i]
The Court found in favour of the petitioner, holding that the marital rape exemption should only cover cases where the woman is 18 years or older and favoured to strike down the Exception 2 to section 375 of the IPC[ii] on the grounds that it is arbitrary, capricious, whimsical and violative of a girl child’s and clearly not fair, just and reasonable and hence stands in violation of Articles 14, 15, and 21 of the COI 1950[iii]. It was further held discriminatory and violative of Article 14 i.e. Right to Equality. It was also held to be inconsistent with the provisions of POCSO 2012[iv] which must prevail. But before dwelling further into the judgment let’s take a look into what was the main issue the case was dealing with.[v]
The main issue taken up by the petitioner which is a registered society since 2009 and has been working for the protection of child rights is whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape? They filed a writ petition for the same under Article 32 of the COI 1950 with a motive to bring the interest of the court towards the violation of the bodily rights of girl children all over the country who are married between 15 to 18 years of age.
Section 375 of the IPC 1860 clearly states that age of consent for a girl child is 18 years and therefore any person having sexual intercourse with a girl below 18 years of age even with her consent will be held liable for rape and would be statutorily guilty even if the sexual act took place with mutual consensus. 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.[vi] Whereas on other hand Exception 2 of Section 375 IPC 1860[vii] unfortunately does not consider rape of a married child between 15 to 18 years of age rape and therefore not an offence, her husband for the purposes under section 375 effectively has full control and power over her body and can have sexual intercourse without her consent or willingness as such act is not considered to be rape under IPC 1860. Only because she is married to him makes this offence not punishable out of respect for the various customs and traditions of the country. This section basically strips of a girl of her right to her own body and consent and stands contrary to philosophy of respecting bodily integrity of a woman and her reproductive choice, under no circumstance can this be said as a life lived with dignity as her choice has been destroyed by traditional practices sanctified by the Indian Penal Code 1860.
Exception 2 to Section 375 of the IPC states that 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 and that is totally against the basic human right i.e. right of the girl child to decline the sexual intercourse if she doesn’t want to has been taken away by the statute.
It was contested by the petitioner that absolutely nothing is achieved with this kind of a law as it has unclear objective just because a girl aged 15 years to 18 years is married that does not hideaway the fact that she is still a child and is not physically or mentally prepared to have sexual relations or have conjugal relations with a man. As per justice Madan B Lokur sexual intercourse with a girl below 18 years is rape no matter whether she is married or not. He believes that this Exception 2 of Section 375 creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child with an unclear objective.
This artificial distinction is not only arbitrary but also discriminatory in nature as it surely doesn’t work for the best interest of a girl child and hence violates Article 15 (3)[viii] of COI 1950.[ix] It also stands contrary to the philosophy and ethos of Article 21[x] of COI 1950 and many international conventions we are signatory to. Article 21 of our constitution guarantees everyone the fundamental right to live a life with dignity, therefore it makes sense for the girl child to have the same right of life with dignity which this exception takes away from her. This artificial distinction totally disregards the horrible social evil of human trafficking by allowing sexual intercourse with a married girl of 15 to 18 years of age and the impact it makes on our society at large. The Supreme Court, in this case, believed that early marriage has many flaws as it takes away a girl’s self-esteem and confidence and constantly risks her to sexual abuse. This exception has created a huge lacuna in our legal provisions towards safeguarding a woman’s dignity and irrational standards have been laid down under IPC 1860.[xi]
The court stated that this Exception 2 of section 375[xii] under IPC 1860 stands contrary to the beneficial intent of Article 15(3) which guarantees special provision for women and children and puts the girl child at a major disadvantage. Justice Deepak Gupta in a concurring judgement states that Exception 2 of Section 375 IPC 1860 needs to be struck down on the following grounds-
- It is arbitrary, capricious, whimsical and violative of rights of girl child and not fair, just and reasonable and hence violative of Articles 14, 15 and 21 of COI 1950.
- Discriminatory and violative of Article 14[xiii] of COI 1950.
- Inconsistent with provisions of POCSO.
This brings our attention to POCSO Act 2012[xiv], which states that rape of a married girl child is an offence of aggravated penetrative sexual assault under Section 5(n)[xv] of the act and punishable under Section 6[xvi] of the same. This incongruity can’t be neglected and hence the need for harmonious construction of the statutes grows even more for the best interest of the girl child.
Pro child statutes such as the JJ Act[xvii] under Section Sec-5[xviii] clearly indicates that a girl child below 18 years of age who is at an imminent risk of marriage needs appropriate care, protection, rehabilitation and restoration as just because she is married she doesn’t lose her status as a child, the Exception 2 of section 375 IPC 1860 worsen a girl child’s situation by exposing her to aggravated penetrative sexual assault for which she is not both psychologically or physically ready, JJ Act is for the benefit of a child and therefore its spirit must be upheld. Similarly, the POCSO Act makes it quite explicit that the dignity and life of a child below 18 years of age must always be respected and recognised. Essentially there is no distinction between rape of married girl child between 15 to 18 years of age and aggravated penetrative assault under POCSO Act 2012 except that latter is punishable and former is not, hence it is necessary that rape of a married girl child becomes punishable by striking down the exception.
The Union of India (respondent’s) contention was that this practice has been followed for a long time in our country and hence it is best to not to be fiddled with, court didn’t agree with their contentions stating that just because child marriages are prevalent in various parts of India and has been followed as a tradition over all these years and has been accepted as a part of our culture does not necessarily mean that we need to recognise it and sanctify it, our legislation must be sane enough to understand which custom is acceptable and which is not.
We need to move with the changing times and holding on to these ancient traditions is not going to help the development of the country and it surely doesn’t work for the best interests of women. Therefore, there is no doubt that impact of Exception 2 of Sec-375 should not be dealt with lightly and appropriate actions needs to be taken against these traditions, they must have been important at one point of time in our history but it is not necessarily cast in stone and hence not vital to be adhered to. As times change so does views and conventions.
The court believed that the best viable option available with them is to read Exception 2 of S-375 in consistency with other pro-child legal statutes including POCSO act and taking into consideration human rights of married girl child being purposive and harmonise laws relating to children and believe that the Exception must be meaningfully read as – “Sexual intercourse or sexual acts by a man with his own wife, wife not being under eighteen years of age is not rape”.
This law under IPC needed a change because when a girl is married before 18 years of age and is forced into sexual intercourse with her ‘husband’ against her consent, she is exposed to severe health risks and various medical and psychological problems as they undergo severe trauma. Hence Justice Deepak Gupta in his concurring judgement believes that the state should not take the defence of tradition and sanctity of marriage where the life of a girl child is at risk as it is clearly violative of A-14, 15(3), 21 of the COI 1950. We must also look into the fact where the state has itself by legislation made abetting child marriage a criminal offence it cannot, on the other hand, defend this artificial distinction and unnecessary classification in the name of customs moreover this is the only provision in the IPC which provides immunity to the husband as if he subjects the girl child to violence he can be held liable under S- 323,324,325 etc. but he cannot be held liable for a far more serious charge of rape, which is the biggest irony of the whole situation and according to J. Deepak Gupta makes it anomalous and astounding that the husband can get away with without being held accountable for his acts and thus leading the petitioner to file this case.
It is totally unacceptable that the only scenario where a ‘husband’ gets immunity from the serious charge of rape is when the victim i.e. the girl child from 15 to 18 years of age is his ‘wife’, who is not even legal to get married and most importantly does not have the capacity to give consent to have sexual intercourse and hence this provision does not stand reason according to the court. Under this section, the division bench held the discrimination to be absolutely patent and violative of rights of a girl child and hence arbitrary.[xix]
Learned counsel for the petitioner presented the 84th report of the Law Commission of India (LCI) released in 1980 before the court dealing with the rape of a girl child below the prescribed minimum age.[xx] The view of the LCI was quite explicit and the report suggested that since the CMRA, 1929[xxi] prohibits the marriage of a girl below 18 years of age, sexual intercourse with a girl child below 18 years of age should also be prohibited and the IPC should reflect that position thereby making sexual intercourse with a girl child below 18 years of age an offence. Hence the petitioner emphasised that since marriage with a girl below 18 years is prohibited (though it is not void as a matter of personal law) sexual intercourse with a girl below 18 years should also be prohibited.
It is established law that if the court finds a law discriminatory, arbitrary or violative of fundamental rights it may either strike down the law and declare it as unconstitutional or may read down the law in such a manner that it falls between the four corners of the constitution as in this case there was no rational nexus with any unclear objective sought to be achieved the court adhered to the established law. But the court made it very clear that they will not be considering the marital rape of a woman above eighteen years of age in the given case and will only look into the matter at hand. The biggest contradicting fact of the whole case is if we look into the sixth clause of S-375, where it is written that:
A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman:[xxii]
Sixthly- With or without her consent, when she is under eighteen years of age.
This is also known as the ‘statutory rape’ law. And according to this consent of a woman below the age of 18 years has been rendered irrelevant. And on the other hand, exception 2 of S-375 allows sexual intercourse of a husband with his wife i.e. a married girl child between 15 to 18 years with or without her consent but simultaneously declares non-consensual sexual intercourse with a girl above 18 years as rape. Hence we can deduct from these circumstances that sexual intercourse with a girl below 18 years of age with or without her consent is rape but not if she is married and hence makes existence of Exception 2 even more complicated and faulty providing blanket liberty to the husband by not making him punishable under rape. But the biggest flaw in the law is that if the same husband outrages her modesty he can be held liable under Section 354 of IPC 1860 for a minor act but not for the major crime of rape.
Further, if we look into the statistics of how child marriages destroy the lives of girl children all over the country and how it has adverse social consequences on her life which has a major negative impact on her life it makes the defence’s case even weaker. We can take a reference from the report, Delaying Marriage for Girls in India: A Formative Research to Design Interventions for Changing Norms in 2011 by the International Centre for Research on Women Report to UNICEF[xxiii] and we come to understand the harsh reality of the implications of child marriage on girls which include an increased risk of maternal and infant mortality, HIV infection due to early sexual debut and early childbearing. Girls married at early ages are also at a higher risk of domestic violence.[xxiv] Moreover, it restricts girls’ opportunities to go to school and gain an education, it restricts them from self-discovery and hampers their growth and stops them from realising their own potential beyond their roles as wives and mothers. It is not only a violation of human rights but it also stops young girls from exploring their identity at a very crucial stage in their life and becomes an obstacle in their character development.
Another reference can be taken from the report of Economic Impacts of Child Marriage: Global Synthesis Report [xxv] released in 2017 which deals with the impact of child marriages on health, fertility, population explosion etc. And the report considers that early childbirths is likely to be due to child marriage when they occur within marriage (and more specifically after six months of marriage under the intermediate estimate by the report), which in turn leads to health complexities in young girls. Early marriage leads girls to have children at an early stage in their life and more chances of having children over their lifetime, which in turn reduces consumption per capita or per equivalent adult in the household in adulthood, thereby increasing the likelihood of being poor and living in poverty.
The many advantages of ending child marriage can be seen in the report, as according to the survey the severe rate of reduction in the populations of many countries by the year 2030 from ending child marriage and early childbirths is far from negligible. Child marriage may also increase the risk of exposure to sexually transmitted diseases or infections, including HIV/AIDS. It may also be the reason attached with lower psychological well-being of these young girls. Deliveries at a young age lead to higher risks of life and complications during childbirth, such as obstructed or prolonged labour and which leads to higher maternal morbidity and mortality rates.[xxvi]
According to a report in 2017 based on the Census 2011: A Statistical Analysis of Child Marriage in India we come to know that imposing marriage on children who are not ready to face the huge impact it will have on their lives and are at a loss to understand the significance of marriage is not needed at the cost of sacrificing their childhood. It prevents them from securing basic freedoms and making important decisions of their life and their personal development is hampered as a result. It restricts them from pursuing opportunities for education, earning a sustainable livelihood and accessing their basic sexual and health rights which form the most important part of their life. Census data has shown a rise in death of girls between 15 to 9 years and these deaths can be a direct result of death due to teenage pregnancy.[xxvii] Worse outcomes of child marriages lead to marginalisation and utter poverty. This has the most detrimental effect on child brides as they are vulnerable in this society.[xxviii]
The UNCRC 1989[xxix] emphasizes the necessity for full and informed consent for marriage, and notes that children do not have the capability to take such decisions and provide such full and informed consent. This is one of the reasons why the age of 18 is recommended as the minimum age for marriage. Moreover, according to Section 3 of PCMA 2006[xxx] a child marriage is voidable at the option of any of the contracting parties to the marriage. It can be declared a nullity by a party within 2 years of attaining majority. This shows that the Union of India has somewhat legalised child marriage unless nullified by any of the parties. We need to understand that delaying marriage for girls can contribute towards reducing maternal and infant mortality, preventing HIV infection, improving women’s educational and economic status, and ensuring women’s rights and gender equality.
Allowing this law where a married girl child cannot be raped if she is between the age group of 15 to 18 years by her husband exposes her to domestic violence, neglect, abandonment, psychological disadvantage, low self-esteem, low education and limited employability. And other serious evils of human trafficking and under-nutrition. The reports mentioned above gives us the idea of the variety and magnitude of problems a girl of age between 15 to 18 years when married at such a young age faces. A study on child abuse in 2007 reports that “Minor girls have not achieved full maturity and capacity and lack ability to control their sexuality. When they marry and have children their health can be adversely affected, education impeded and economic autonomy restricted and imminent risk of HIV infection.
The 36th session of Human Rights Council[xxxi] too emphasised on the recommendation of the petitioner to remove the Exception 2 of S-375 of IPC 1860 related to marital rape of girl child bringing in much needed international attention. Sexual intercourse with a girl child aging from 15 to 18 years should not be allowed for a variety of reasons regarding the well-being of her health and also for her social standing which should be of paramount importance. According to their study child marriage or other harmful traditions of coercive nature has been identified as a subtle form of violence against the children.
Under PHRA 1993[xxxii] if a girl child is forced into sexual intercourse by her husband against her willingness it clearly is a case of violation of her human rights as it affects her dignity and right to liberty which has also been guaranteed by our constitution and embodied in international conventions accepted by India such as CRC 1990[xxxiii] and CEDAW 1979.[xxxiv]
Under The PWDVA 2005[xxxv] too under Section 3 it provides that if husband harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical of the wife it will be construed as domestic violence and husband will be liable for a protection order against him and liable to pay compensation.
The preamble of the POCSO act 2012 states that the best interest of a child must be secured, child being any person under the age of 18 years as stated in S-2(d), safety and security of child is an obligation on the Government of India as a signatory to CRC 1990[xxxvi]. Well-being of a child is of paramount interest for an all-round development of the child emotionally, physically in a healthy way to ensure educational and intellectual growth and social development. Preamble of the POCSO at 2012 also states that “sexual abuse and sexual exploitation of children are heinous crimes and need to be effectively addressed” directly in conflict with Exception 2 of S-375 of IPC 1860 which legalises sexual abuse of a married girl child.
Under Article 34 of CRC 1990[xxxvii] it has been held that the government will take all possible actions to prevent coercion of child into any unlawful sexual activity but Exception 2 has been defined as lawful sexual activity, whereas POCSO 2012 states that sexual activity engaged with a girl child also known as ‘aggravated penetrative sexual assault’ under S-5(n) by her husband or anyone else is unlawful and punishable offence under S-6 with rigorous imprisonment of not less than 10 years and which may extend to imprisonment for life, hence bringing dichotomy certainly not in spirit of CRC 1990. This leaves a huge dilemma as on one hand it is said that the husband has not committed rape if he has sexual intercourse with his teenage wife but on the other hand POCSO states this as ‘aggravated penetrative sexual assault’ and holds him liable and punishable hence leaving a huge lacuna that the courts need to clear.
A child who is ensured to care and protection has been defined under Section 2(14) of the JJ Act, as a child “who is at imminent risk of marriage before attaining the age of marriage and whose parents, family members, guardian and any other persons are likely to be responsible for solemnization of such marriage”. And making it even clearer that a girl child below 18 years of age and who is to be married is a child in need of safety, security, care and protection. She is therefore directed and required to be produced before a Child Welfare Committee brought under Section 27 of the JJ Act so that she could be taken care of with appropriate protection and further for better rehabilitation so that she can be restored properly to the society and hence continue a normal life.
Moreover, these girls also have been guaranteed constitutional safeguards in the form of Fundamental Rights under Article 15(3) as Article 15(3) of the Constitution states that “Nothing in this article shall prevent the State from making any special provision for women and children”. Hence enabling the provision to make necessary laws for the protection, development and welfare of women and children in general. In the case of Government of A.P. v. P.B. Vijayakumar[xxxviii] it was held that Article 15(3) has been included in our constitution in order to eliminate the socio-economic backwardness of the women in our country due to years of repression and to bring them in the forefront with the male population who are predominant and to empower them in such a manner that would also bring about equality and stop discrimination that has been prevalent for so many years between men and women. Its main objective is to strengthen the women’s position in our county and improve their status so that they can live a life of dignity and also contribute to the country’s growth. To bring them in the forward rather than hiding them in the back.
In Suchita Srivastava v. Chandigarh Administration[xxxix] this landmark judgment emphasised the right to make a reproductive choice is equal to our right of personal liberty under Article 21 of the Constitution which also guarantees privacy, dignity and bodily integrity. Hence it also includes the right to abstain from procreating making it a choice of a woman on her own body. A woman has the full right to refuse participation in asexual activity if she doesn’t wish to do the same.
Finally in the court’s judgment J. Deepak Gupta mentioned that they were not impressed and disagreed with the arguments raised by Union of India stating that just because an abhorrent tradition i.e. child marriage has been followed for a long time doesn’t mean that it needs to be legitimised even though it is illegal and a criminal offence as the Parliament of India has decided that the minimum age for a girl to get married is 18 years and before that she has no capacity to consent hence this makes Exception 2 of S-375 arbitrary and violative of A-14, 15(3) and 21 as the girl child is being denied her right to proper healthcare and the chance to bloom into a mature woman. As law cannot be static hence This law is liable to be set aside as it is unjust, unfair and unreasonable in addition to violating rights of girl child.
The law here is absolutely discriminatory as it does not give the married girl child her right to choice and this unreasonable classification and artificial distinction forced on girls aged 15 to 18 years is clearly discriminating, hence making the discrimination absolutely patent and hence violative of A-14. Further this Exception 2 of S-375 is in conflict with POCSO 2012 where under S-6 this type of aggravated penetrative sexual assault is punishable and a criminal offence hence the court decided that POCSO 2012 shall prevail as it is a special act made specifically for well-being of children whereas IPC 1860 is a general criminal law hence the court declared Exception 2 to be inconsistent with the POCSO Act 2012.
The court finally decided to bring Exception 2 of S-375 within the four corners of law and in consistency with the COI 1950. And held that-
“Exception 2 to Section 375 IPC in so far as it relates to a girl child below 18 years is liable to be struck down on the following grounds:
(i) it is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Article 14, 15 and 21 of the Constitution of India;
(ii) it is discriminatory and violative of Article 14 of the Constitution of India and;
(iii) it is inconsistent with the provisions of POCSO, which must prevail.
Therefore, Exception 2 of Section 375 IPC is read down from now on as follows:
“Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape”.
There has yet not been any major step towards criminalising marital rape yet but this judgment is the first major step towards respecting and protecting of a girl’s bodily integrity and hopefully more such decisions will follow in future.
[i] Independent thought V Union of India and another 2018 CRI.L.J.3541
[ii] Indian Penal Code 1860
[iii] Constitution of India
[iv] Protection of Children from Sexual Offences (POCSO) Act 2012
[v] Child Brides and the Capacity to Consent: A Comment on Independent Thought v Union of India by Arushi Garg
[vii] Exception 2 to S-375 IPC- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape
[viii] Article 15(3)- Nothing in this article shall prevent the State from making any special provision for women and children
[ix] Constitution of India 1950
[x] Article 21- Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law
[xi] Id. at 1
[xii] Id. at 7
[xiii] Article 14- Equality before law: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
[xiv] Id. at 4
[xv] Section 5(n) of POCSO Act 2012- whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child
[xvi] Section 6 of POCSO Act 2012- Punishment for aggravated penetrative sexual assault. -Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.
[xvii] Juvenile Justice (Care and Protection of Children) Act, 2015
[xviii] Section 5 of JJ Act 2015- Placement of persons, who cease to be a child during process of inquiry. Where an inquiry has been initiated in respect of any child under this Act, and during the course of such inquiry, the child completes the age of eighteen years, then, notwithstanding anything contained in this Act or in any other law for the time being in force, the inquiry may be continued by the Board and orders may be passed in respect of such person as if such person had continued to be a child.
[xix] Id. at 1
[xx] Law Commission of India 84th Report, 25th April, 1980
[xxi] Child Marriage Restraint Act, 1929
[xxii] Section 375 IPC 1860
[xxiii] Delaying Marriage for Girls in India: A Formative Research to Design Interventions for Changing Norms 2011
[xxv] Economic Impacts of Child Marriage: Global Synthesis Report 2017
[xxvi] Id. at 24
[xxviii] A Statistical Analysis of Child Marriage in India 2017
[xxix] The Convention on the Rights of the Child (UNCRC) 1989
[xxx] Prohibition of Child Marriage Act 2006
[xxxi] 36th session of Human Rights Council, Oct.2017
[xxxii] Protection of Human Rights Act 1993
[xxxiii] United Nations Convention on the Rights of the Child 1990
[xxxiv] The Convention on the Elimination of all Forms of Discrimination Against Women 1979
[xxxv] The Protection of Women from Domestic Violence Act 2005
[xxxvi] Id. at 33
[xxxvii] Article 34- States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: (a) The inducement or coercion of a child to engage in any unlawful sexual activity; (b) The exploitative use of children in prostitution or other unlawful sexual practices; (c) The exploitative use of children in pornographic performances and materials.
[xxxviii] 1995 4 (SCC) 520
[xxxix] (2009) 9 SCC 1
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