This article is written by Yashika Kapoor, pursuing Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from Lawsikho.com.

Introduction

Our legal frameworks recognize the age of consent for sexual intercourse as well as the age of marriage for girls as 18 years, and yet one of the most important codes of the country contains a provision that recognizes that a girl below 18 years of age can be a wife and indulging in sexual intercourse with her, will not amount to rape. As ghastly as it sounds, it was time that this obsolete provision needed the attention of the Judiciary. Fortunately, an organization called ‘Independent Thought’ filed a PIL intending to protect child brides from the horrifying experiences of child marriage. As reported by the organization (Independent Thought), post this landmark judgment, several actions have been taken by the Police and Judiciary for protecting the child brides. This showcases the fulfilment of one of the prime objectives of public interest litigation. Similarly, other government organizations or NGOs must make efforts by raising their voice against a social evil/wrong and such wrong can be negated by filing a PIL before the Hon’ble High Court or the Hon’ble Supreme Court. 

According to a report by UNICEF, before the Covid-19 pandemic, more than 100 million girls were expected to get married before their eighteenth birthday in the next decade. However, post the pandemic, close to 10 million additional girls are now at risk of becoming child brides. It is believed that child marriage is a deep-rooted social evil that not only robs girls of their childhood but also threatens their lives and affects their well-being and future. As per UNICEF, India contributes one-third of the global total for the largest number of brides in the world. Such persistence in child marriages makes it challenging for India to achieve Sustainable Development Goal 5 by 2030.  However, Independent Thought vs. Union of India was one such case where with the combined efforts of the NGOs, the Hon’ble Supreme Court, and the petitioner advocates, a judgment to the effect that ‘sexual intercourse by a man with his minor wife is guilty of rape’ was passed. This ruling stands out to be a discouragement for child marriages in India and a major step towards respecting a woman’s bodily integrity.  

What happened in Independent Thought vs UOI that led to the protection of child brides in India? 

Public interest litigation was filed by a registered society namely Independent Thought that primarily works towards child rights. It challenged the constitutional validity of Exception 2 to Section 375 of the Indian Penal Code, 1860 [as amended by the Criminal Law (Amendment) 2013] stating that the said exception is violative of Articles 14, 15, and 21 of the Indian Constitution to the extent that it permits sexual intercourse with a girl child between the age of 15 to 18 years only on the ground that she has been married. Exception 2 to Section 375 of the Indian Penal Code, 1860 states that sexual intercourse by a man with his own wife where the wife not being under fifteen years of age does not constitute rape. Hence, the petitioner’s case is that age for the consent of the girl child must be 18 years and not 15 years as the same is arbitrary, whimsical, and discriminatory.

The rationale behind filing this PIL was to get a practical understanding of the fact that the girl child aged between 15-18 years were being forced into marriage and we have no provision safeguarding them rather the law (Exception 2 to Section 375 of IPC) itself legalizes their sexual relations by regularizing the age for consent to 15 years whereas the age of consent is otherwise 18 years. It is pertinent to note that the Parliament vide the Criminal Law (Amendment) 2013 sixthly of section 375 IPC (with or without her consent, when she is under eighteen years of age), 1860 has increased the age of consent for a girl to 18 years. Hence, it is self-explanatory that firstly, sexual intercourse with a girl less than 18 years amounts to rape irrespective of her consent as it is believed that the minor’s consent is ‘no consent in eyes of law’ in rape cases. Secondly, sexual intercourse with a woman aged above 18 years constitutes rape if it falls under any of the seven descriptions laid down in Section 375 of IPC. However, considering the third situation, as per Exception 2 to Section 375 if such a girl aged between 15-18 years is married and sexual intercourse with her does not constitutes rape. Thus, the husband possesses blanket liberty and freedom to have non-consensual sexual intercourse with the wife (between 15-18 years), and interestingly enough, he would not be punished under section 375 of IPC. Such disparity between the age of consent for a married and unmarried girl is beyond acceptance. 

Therefore, the registered society namely Independent Thought rightly pointed out that the Parliament had incorrectly continued the age of 15 years in Exception 2 to Section 375 and failed to protect the rights of a girl child between the age group of 15-18 years thereby placing undue reliance on the decision of her parents or guardians to get her married and ignoring the fact that such girl is otherwise not competent under law to give her consent to the sexual relationship. 

Let us consider the definition of child in other children-oriented legislations of India for understanding the age of consent: 

• Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 provides that a person less than 18 years is treated as a juvenile. 
• Section 2(1)(d) of the Prohibition of Child Marriage Act, 2006 provides that it is a criminal offence to solemnize the marriage of a girl who was less than 18 years, though the marriage itself was voidable at the instance of the child and not void.
• The Protection of Children from Sexual Offences Act, 2012 defines a child as a person less than 18 years of age. 
• The Criminal Law (Amendment) 2013 provides the age of consent for sexual intercourse increased to 18 years. 

While challenging Exception 2 to Section 375, attention must be paid to other factors like; a girl child aged between 15-18 years is not in a position to decide for herself, and in such circumstances, the state must protect her from being subjected to sexual intercourse under the guise of marriage. Also, there is sufficient medical literature to show the adverse health consequences of childbirth at an age less than 18 years are harmful to both the girl child and the child born. In fact, the intent of Article 15(3) that enables the Parliament to make special provisions for women and children is contrary to Exception 2 of Section 375 of IPC. 

Hence, one of the major questions for consideration of the Hon’ble Supreme Court was that whether sexual intercourse between couples where the age of wife is between 15 to 18 years be considered within the definition of rape and whether the said exception is violative of Article 14, 15 and 21. 

The Division Bench comprising Hon’ble Justice Madan B. Lokur and Hon’ble Justice Deepak Gupta while deciding the issue that whether sexual intercourse between a man and his wife where the wife is aged between 15-18 years constitutes rape or not, observed that sexual intercourse by a man with a girl below 18 years shall be considered as Rape irrespective of the fact that whether the girl is married or not. Exception 2 to Section 375 under the Indian Penal Code does not prove to be obligatory as it creates an unnecessary distinction between a married girl child and an unmarried girl child. Thus, it has been explicitly stated that Section 375 of IPC has a similar position for a married girl child as well as an unmarried girl child and so the artificial and unnecessary distinction made is not at all favourable for the girl child. Moreover, it has also been observed that the said exception is contrary to Article 15(3) and Article 21 of the Constitution of India. Further, it was observed that a girl child below 18 years of age can neither be treated as a commodity having no say over her body nor as one who possesses no right for denying sexual intercourse to her husband. Hence, the Hon’ble Supreme Court read down this exception to bring it within the ambit of the Indian Constitution 

Legal provisions for the protection of interest of child brides 

Prohibition of Child Marriage Act, 2006 (PCMA)

• According to Section 3 of the Prohibition of Child Marriage Act, child marriage is considered voidable at the option of any one of the parties to the child marriage.  
• According to Section 9 of the Prohibition of Child Marriage Act in case any male adult (above 18 years of age) marries a girl child, he/she shall be made punishable with rigorous imprisonment extending to two years or a fine extending to 100000/- or both.
• As per Section 10 of the Prohibition of Child Marriage Act any individual taking part by performing, conducting, directing or abeting any child marriage shall be made punishable with rigorous imprisonment extending to two years or a fine extending to 100000/- or both.
• As per Section 11 of the Prohibition of Child Marriage Act any person who promotes or even allows solemnization of a child marriage shall be punished in accordance with the Act.
• According to Section 13 of the Prohibition of Child Marriage Act, the jurisdictional judicial officer has the obligation to stop/halt (injunct) the performance of child marriage. 
• According to Section 14 of the Prohibition of Child Marriage Act, if substantial efforts are taken by the jurisdictional judicial officer for an injunction under Section 13 of the act and however even after such steps, in case any child marriage is solemnized by violating the injunction under Section 13, such child marriage shall be considered void.

Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act)

• According to Section 2(12) of the Juvenile Justice Act, a child is a person who has not completed 18 years of age. 

• The definition of a ‘child in need of care and protection’ has been given under Section 2(14) of the Juvenile Justice Act. Section 2(14)(xii) talks about a child who is at risk of marriage before attaining the age of marriage and in the solemnization of such marriage, the child’s parents, family members, guardian and any other persons are accountable. 

• It can be further observed that a girl child (below the age of 18 years) if getting married shall be considered as a child in need of care and protection. 

• Consequently, such children shall be produced before a CWC constituted under Section 27 of the Juvenile Justice Act. Hence, it is important to understand that even if a girl child is married, it does not lose her status under Section 2(14) of the act and still remains a child in need of care and protection.

Protection of Women from Domestic Violence Act, 2005 (DV Act)

According to Section 3 of the Domestic Violence Act, 2005, if it is found that the husband of a girl child is either harming or proving to be an endanger to the health, safety, life, or well-being of his wife, then in such case, the husband shall be liable to have a protection order issued against him following which he shall be required to pay compensation to his wife. The abuse can be either both physical abuse and sexual abuse or any one of them. 

Protection of Children from Sexual Offences Act, 2012 (POCSO)

• The definition of penetrative sexual assault is given under Section 3 of the Protection of Children from Sexual Offences Act, 2012 (POCSO)
• As per Section 5(n) if it is found that a person is related to the child by way of marriage and thereby commits a penetrative sexual assault with the child, then in such case that person is liable for committing aggravated penetrative sexual assault under the Act. 
• So it can be understood that in case of penetrative sexual assault is committed by the husband his wife (girl child), he shall be made punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012. 

The opinion authored by Hon’ble Justice Madan B. Lokur 

Hon’ble Justice Madan B. Lokur at the very outset mentioned that no observation by this ruling is being made concerning the marital rape of a woman who is aged 18 years or above. While answering the aforementioned question of considering the said offence as rape or not, it was observed by the Hon’ble Supreme Court that:

“Sexual intercourse with a girl below 18 years of age is ‘Rape’ regardless of whether she is married or not. The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. The artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child. The artificial distinction is contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in international conventions. It is also contrary to the philosophy behind some statutes, the bodily integrity of the girl child and her reproductive choice. What is equally dreadful, the artificial distinction turns a blind eye to the trafficking of the girl child and surely each one of us must discourage trafficking which is such a horrible social evil”. 

One of the important contentions made by the Petitioner is that non-consensual sexual intercourse by a husband with her wife is not an offence under IPC. However, attention must be drawn towards the adverse challenges (both mental and physical) a girl child goes through in case she is married below the age of 18 years. To support the same, reliance was made on documentary material including the following reports:

• “Delaying Marriage for Girls in India: A Formative Research to Design Interventions for Changing Norms” by UNICEF India. 
• “Reducing Child Marriage in India: A Model to Scale up Results” by UNICEF India. includes statistics of widowed, separated and divorced girls married between the age group of 10 and 18 years. 
• “Economic Impacts of Child Marriage: Global Synthesis Report”  by the International Centre for Research on Women and the World Bank highlights the impact of child marriages on fertility and population growth; health, nutrition, and intimate partner violence; educational attainment; labour force participation, earnings and welfare, etc. 
• “A Statistical Analysis of Child Marriage in India based on Census 2011” by Young Lives and NCPCR. 
• “In-depth Study on all forms of violence against women”, a report submitted by United Nations to the General Assembly highlighted the fact that early marriage was one of the commonly observed forms of violence. 
• Study on Child Abuse: India 2007 by the Government of India.

Thus, the Hon’ble Supreme Court observed that the plethora of aforesaid documentary material indicates that there is a link between early marriage and sexual intercourse with a girl child between the ages between 15-18 years of age. Hence sexual intercourse with girls below 18 years of age is not advisable for several reasons including but not limited to early pregnancy, child health problems, physical and psychological consequences, social standing. 

Hon’ble Justice Madan B. Lokur observed that sexual intercourse with a girl under 15 years of age is rape, irrespective of the fact that it is with or without her consent, against her will or not, whether it is by her husband or anybody else. The court observed that “there is no real or material difference between the definition of rape in the terms of Section 375 of the IPC and penetrative sexual assault in the terms of Section 3 of the POCSO Act. 6 The only difference is that the definition of rape is somewhat more elaborate and has two exceptions but the sum and substance of the two definitions are more or less the same and the punishment (under Section 376(1) of the IPC) for being found guilty of committing the offence of rape is the same as for penetrative sexual assault (under Section 4 of the POCSO Act)”. 

Hence, Hon’ble Justice Madan B. Lokur held that the most viable option to decide the case at hand would be to read Exception 2 to Section 375 of the IPC purposively so as to make it in consonance with the Protection of Children from Sexual Offences Act, 2012 as well as other pro-child legislations. 

“Being purposive and harmonious constructionists, we are of the opinion that this is the only pragmatic option available. Therefore, we are left with absolutely no other option but to harmonize the system of laws relating to children and require Exception 2 to Section 375 of the IPC to now be meaningfully read as: 

“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”

This judgment is a pioneer for protecting the child bride from sexual abuse at the hands of her husband. Post this ruling, the child bride possesses the right to file a complaint against her husband following which the husband shall be accused of committing rape. Also, this judgment shall help support in declaring the child marriage as void ab initio. It is difficult to believe that before this ruling, no provision of the law was available to such girl child victims. It is believed that post this landmark judgment of 2017, measures are being taken to protect the girl child. However, in many parts of rural India, the practice of child marriage is still continued. This requires steps to be adopted at the governmental as well as the individual level to sensitize such strata of society.  

The opinion authored by Hon’ble Justice Deepak Gupta  

Deciding upon the same issue, Hon’ble Justice Deepak Gupta discussed the developments in the legislations thereby mentioning that it was in 2013 after the unfortunate ‘Nirbhaya’ incident following which the Parliament increased the age for the consent of girl child to 18 years. The same can be observed under clause Sixthly of section 375 of IPC. However, no changes were observed in Exception 2 to Section 375 IPC meaning that a girl child (between 15-18 years of age) who was married has a possibility of getting sexually harassed with or without consent at the hands of her husband. Moreover, the husband of such a girl child cannot be charged for committing any offence. 

1. Emphasis was also made to Section 198(6) of the Code of Criminal Procedure, 1872 as per which no court is permitted to take cognizance of an offence committed under section 376 of the Indian Penal Code. The offence under such section consists of sexual intercourse by a husband with his wife where the wife is below 18 years of age. However, it imposes a limitation of more than one year from the date of the commission of the offence. It is pertinent to note that prior to the amendment, the age of consent was ‘fifteen’ years which was later amended to ‘eighteen years’. Thus, it can be viewed that while amending section 198 of the Code, the legislature visualised that there can be a possibility of commission of marital rape with a “wife” aged less than 18 years. However, no significant amendment was made in the said exception of Section 375 of the Indian Penal Code. 
2. Hon’ble Justice Deepak Gupta opined that perusal of the various reports and data placed before the Hon’ble court displays that marriage of the child not only violates the human rights of a girl child but also affects their health. 
3. Reliance was placed to the status of child marriages in the state of Karnataka wherein it was observed that any marriage of a child, wherein the age of a girl child is below eighteen years and that of a boy is below twenty-one years is considered as void ab initio. Setting Karnataka as an example, the court observed that this is the manner in which the law must have been. 
4. Hon’ble Justice Deepak Gupta stated that looking at the legislative history it can be observed that a child has unanimously been defined as an individual below the age of eighteen years of age in almost all the legislations. The same has been done as it is professed that an individual below the age of eighteen years is not fully developed and is not aware of the consequences.
5. Hon’ble Justice Deepak Gupta further observed that in case if a girl is compelled to marry before 18 years, her health is put in serious jeopardy. The documentary material presented before the court was enough to justify that girls married before the age of 19 years are likely to suffer medical and psychological problems. Moreover, the girl child is also twice as likely to die while giving birth in comparison to an adult woman. 
6. It is important to note that Exception 2 to Section 375 IPC is read down so as to bring it in consonance with the relevant provisions of the Indian Constitution and POCSO. 

This ruling definitely establishes a nexus between all the pro-child legislation that is enacted to safeguard the interest of girl children as well as protect them. It can be perceived that this ruling cleared the ambiguity with respect to the age of consent i.e. 18 years. The interpretation of a child/minor in exception 2 to Section 375 IPC was contrary to the definition of a minor/child in other statutes. Hence, the Hon’ble Supreme Court has rightly passed a landmark judgment by not declaring Exception 2 to Section 375 IPC as unconstitutional rather by reading down the Exception 2 to Section 375 IPC by harmonizing the law under IPC with other statutes. Lastly, it is pertinent to mention that this ruling rightly recognizes the bodily integrity of a girl child and the reproductive choices available to her.  

Conclusion 

The efforts taken by the registered society namely Independent Thought as well the active involvement of Hon’ble Justice Deepak Gupta and Hon’ble Justice Madan B. Lokur in deciding the case is quite laudable. The said petition was filed in the form of a Public Interest Litigation and the said decision truly benefits the society at large. It is quite difficult to comprehend the fact that before the passing of this judgment, no precedent or statute was available to protect the girl child (between the age group of 15-18 years) who is married and is sexually harassed at the hands of his husband. However, after applying the purposive and harmonious construction rule to this ruling, Exception 2 to section 375 is read purposively so as to make it in consonance with the Protection of Children from Sexual Offences Act, 2012. 

One can understand the scope of a PIL by referring to this judgment. Such PILs filed by public-spirited citizens not only provide access to justice for the girl child but also forbade the grave violation of human rights. Independent Thought vs. UOI is one such case that truly proves that PIL acts as an instrument to bring social change as well as PIL is a tool for implementing the concept of judicial activism. 

We must adhere to the observations made by the Hon’ble Supreme Court while deciding the aforementioned issue wherein it was pointed out that no matter welfare schemes and slogans are exceptional for sensitization among people but efforts must be taken to back them up by making implementation programs. Such programs shall help in making decisions, policies, and guidelines favourable for the girl child thereby making a promising future. However, even after this ruling was made in 2017, child marriages are still persisting in society but at least now we have statutory protection to that effect. 

References 

• https://scobserverproduction.s3.amazonaws.com/uploads/case_document/document_upload/724/IndependentThought-pages-Gupta.pdf
• https://scobserverproduction.s3.amazonaws.com/uploads/case_document/document_upload/292/Child-Marital-Rape-Writ-Petition-1.pdf
• https://scobserverproduction.s3.amazonaws.com/uploads/case_document/document_upload/723/IndependentThought-pages-Lokur.pdf
• https://indiankanoon.org/doc/854390/
• https://www.unicef.org/india/media/2556/file/Drivers-strategies-for-ending-child-marriage.pdf
• https://www.unicef.org/protection/child-marriage
• https://data.unicef.org/resources/covid-19-a-threat-to-progress-against-child-marriage/

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