Independent Thought v. Union of India

The judgment in Independent Thought v. Union of India[1] makes it a landmark case in the area pertaining to rape laws. The issue before the Hon’ble Supreme Court was whether sexual intercourse between a man and his wife being a girl aged between 15-18 years amounts to rape, which the bench considered of utmost public importance. The party that filed the writ petition in public interest U/S 32 of the Constitution is a registered society working for child rights. The petitioner threw immense light upon the prevailing conditions in law which are in constant violation of the rights of married girls between 15-18 years of age.

Exception 2 to Section 375 (rape) of IPC, 1860 states, “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” The age of consent for sexual acts, as prescribed under the IPC is 18 years which means that any person having sexual intercourse with a girl below 18 years would be held statutorily guilty even if the act was consensual. However, exception 2 to S/375 has exempted the husband of a girl child aged between 15-18 years from statutory liability, and therefore, he can have sexual relations with her without her consent. Only if the married girl child happens to be less than 15 years of age, the husband can be penalised for rape and not otherwise.

Summary of submissions made by the petitioner (Independent Thought):

  • The fact that merely because a girl child is married, does not result in ceasing her to be a child making her physically and mentally able to have sexual intercourse or indulge in any sexual act.
  • The exception creates an unnecessary and arbitrary distinction between a married and an unmarried girl which does not have any clear objective to achieve.
  • The exception by virtue of Article 14[2] is discriminatory in nature and is in sharp contrast with the beneficial intent of Article 15(3)[3].
  • The right to dignity, to bodily integrity and to make reproductive choices under Article 21[4] are violated by the exception. The reproductive choices include the right to procreate as well as to abstain from procreating.[5] This is more important in the case of a girl child who has little or no say in reproduction after an early marriage.[6]
  • The girl child (15-18 years) cannot be presumed to have given her consent for sexual intercourse or any other sexual act with her husband for all times to come as she is still a child irrespective of her marital status.
  • The exception talks about the girl child being married at the age of 15 years, thereby implying that child marriages can still be performed. The specific relaxation given to a husband who rapes his wife aged between 15-8 years is an instance of legislative sanction and endorsement to child marriages.[7]

Summary of submissions made by the Respondent (UOI):

  • The Parliament cannot criminalize sexual activity between a girl child and her husband because many child marriages are still taking place due to uneven development of the country.
  • The exception comes to the rescue of the husband if the child’s marriage has been solemnized due to traditions. Otherwise, one can resort to S/3(1) of the Prevention of Child Marriage Act, 2006 within two years of attaining majority, whereby the marriage is voidable at the option of any contracting party who was a child at the time of marriage.
  • The National Family Health Survey 3 report[8] shows that in the age group of 20-24, 18% of women are married before age 15 and 47% are married before age 18 and in the age-group 25-29, one in four women was married before age 15. Therefore, it would not be practical and rational to criminalize the consummation of marriage.
  • The socio-economic conditions of the country don’t allow for the punishment for a child marriage with consent and exception 2 has retained 15 years keeping in view the social realities of the country.
  • The exception has been provided to make sure that a particular section or class of society is not affected.

Observations made by the court:

Determining the question as to who is a child, the court examined various statutes. On reading Section 2(1)(d) of the Protection of Children from Sexual Offences Act, (POCSO) 2012; Section 2(12) of the Juvenile Justice (Care and Protection of Children) Act, (JJ Act) 2015; Section 2(a) of Prohibition of Child Marriage Act, (PCMA) 2006; Section 2(b) of the Domestic Violence Act, (DV Act) 2005 Section 3 of the Majority Act, 1875; Section 11 of the India Contract Act, 1872, it is clear that a child is deemed to be a person below 18 years of age who is unable to look after her interests and needs.

An early marriage has been considered one of the forms of violence against women within the family[9] and regarded as an evil and harmful traditional practice.[10] It is an obstacle in the development of young people, preventing them from discovering their self-identities.[11] The ill effects on girls are wide-ranging as compared to boys including early pregnancy, maternal and neonatal mortality, household chores, violence and abuse, discontinuance of education, low self-esteem, no employability, health problems, the dominance of family, and vulnerability. Article 11 of the National Charter for Children, 2003 obligates the State and community to eradicate child marriage as it is a crime against the girl child. Therefore, the Parliament enacted PCMA, 2006 recognizing it as a crime by prescribing punishment for a male above 18 years for marrying a child, for any person who abets, promotes, permits, or directs child marriage. However, the Act has not declared it as void ab initio but only voidable at the option of any contracting party who shall file a petition for annulling marriage within 2 years of attaining majority. The PCMA has failed because of the dominance of religion-based personal laws, the prevalence of social norms and traditions over the legal framework, and unawareness about PCMA. Married girls are forced to make conjugal relations with their older partners that can lead to psychological and physical damage.

A four-member committee was formed by the Karnataka High Court to suggest measures to eradicate child marriage from society. In pursuance of the recommendations forwarded by the committee, the Karnataka government brought Prohibition of Child Marriage (Karnataka Amendment) Act, 2016 in April 2017 by which sub-section (1A) was inserted under Section 3, making Karnataka the first state to declare every child marriage as void ab initio.

Under Article 34 of the UN Convention of Child Rights, 1989 to which India is a party, the Indian government is bound to undertake all necessary measures to protect children from unlawful sexual activity. The Parliament, however, has given blanket liberty to the husband of a girl child aged 15-18 years to have non-consensual sexual intercourse with her under the IPC. The POCSO Act was enacted to prevent sexual offences and exploitation of children giving substantial meaning to A/15(3) by laying out child-friendly provisions. The Preamble of the Act stating that sexual exploitation and sexual abuse of children are heinous crimes that need to be effectively addressed is in direct contradiction with exception 2 to S/375 IPC which legitimizes the sexual exploitation and abuse if done by the husband of a girl child.

Section 3 defines the offence of penetrative sexual assault committed on a child. When this offence is committed by any person related to the child by marriage, the offence turns into an aggravated penetrative assault under S/5(n) and punishable under S/6. The husband of a girl child (15-18 years) cannot be said to have committed rape under S/375 IPC because of the impugned exception attached to it. On the other hand, he can be made liable under S/5 of the POCSO Act for the same act.

Consequently, an anomalous situation subsists that an unmarried girl below the age of 18 years could prosecute her perpetrator under both IPC and POCSO Act. But a married girl aged between 15-18 years could be a victim of a sexual offence under the POCSO Act but cannot be a victim of rape under IPC. To solve this ambiguity the court further examined and observed that an important amendment was made in POCSO Act in 2013 by inserting S/42A which clears out any inconsistency arising between POCSO and any other law by overriding the latter by former to the extent of such inconsistency. Also, on the conjoint reading of Sections 5 and 41 of the IPC, a special law is a law related to a particular subject whose provisions would not get affected by anything in the IPC. Thus, the court concluded that POCSO, being a special law related to prevention of child abuse, will prevail over the IPC as there is an inconsistency between S/5(n) of the POCSO and exception 2 of S/375 of the IPC.

Had the definitions of rape and aggravated penetrative sexual assault been distinct, there would have no inconsistency between the provisions of the IPC and POCSO, however, these two offences don’t have any real difference but only a linguistic one which invites harmonious construction of those provisions and related statutes.

The court read S/2(14) of the JJ Act, 2015 as it suggests that a child who is at imminent risk of marriage before attaining the age of marriage and whose parents, guardian and any other person is responsible for solemnization of such marriage, needs care and protection by the State, therefore, making strong grounds against the impugned exception.

Another important provision the court referred to was S/196(8) of the Code of Criminal Procedure, 1973 whereby a court can take cognizance of the offence of rape against the husband, within one year of its commission when the wife is below 18 years. It was amended in 2009 by changing 15 years to 18 years. The court gathered the intent of the legislature that there could be a possibility of marital rape with ‘wife’ aged less than 18 years but no linked amendment was made in the exception 2 to S/375.

Whether sexual intercourse between a girl child and her husband is described as rape or aggravated penetrative sexual assault, it doesn’t matter because a rapist remains a rapist regardless of his relationship with the victim.[12] On top of that, a child is a child no matter what prefix is attached to it, like the case herein, a married child is still a child incapable of understanding the true meaning of marriage. The court quoted the famous Shakespeare’s phrase thata rose by any other name would smell as sweetto the aforementioned view.

Exception 2 has patent discrimination and is violative of A/14 because it creates a distinction between a consenting girl child, who is almost an adult, and a non-consenting child bride. The helpless and underprivileged child who has been married off by her parents against her will and the marriage is consummated without her consent cannot file a criminal case and thus, is deprived of her rights to say “yes” or “no” to having sexual intercourse with her husband. The reason for such discrimination as forwarded by the UOI is to avert excessive intervention by the State in the pious institution of marriage. This is the only provision that gives immunity to the husband as he is not immune from prosecution as far as other offences are concerned. He can be tried for lesser crimes like outraging the modesty, sexual harassment, voyeurism, simple hurt, or grievous hurt under relevant sections due to the absence of any such similar exception, yet cannot be indicted for rape. The Domestic Violence Act, 2005 will also apply to the husband if he injures or endangers the health, safety, life, limb, or well-being, whether mental or physical, of his wife including by causing physical abuse and sexual abuse.[13]

The Parliament increased the age of marriage in the year 1978 through an amendment in the Child Marriage Restraint Act, 1929 from 15 to 18 years. It then also increased the age of consent to 18 years from 16 in 2013 therefore fixing a lower age under exception 2 is completely irrational and cannot be right, just and fair. It violates A/21 as it is arbitrary and oppressive to the married girl child. The minimum age of 15 years under the challenged exception encourages child marriage and has been retained due to its long existence.

The court notices that merely because something is going on for a long time is no ground to legitimize an illegal activity. Law cannot be static but has to evolve with the changing needs of the society The Parliament cannot after deciding that a girl is incapable of giving consent for sex and cannot legally marry if she is below 18 years of age, preserve a child marriage, which is an abhorrent practice and a crime as an exception in case of a girl child subjected to sexual intercourse by her husband. The court may strike a law that may be reasonable at the time of its enactment but has become unreasonable and violative of the doctrine of equality over time[14] just like exception 2 as it’s inconsistent with A/15(3) not being a pro-child provision.

The decision of the division bench (Madan B. Lokur J. and Deepak Gupta J.):

The court after analysing the law and other material checked the viability of the options available before itself for deciding the case.

  • To let the incongruity remain was not possible since the lives of thousands of girls were at stake.
  • To strike down the whole exception 2 as unconstitutional was not legally possible as the petitioner didn’t raise this issue and gave up relief midway.
  • To reduce the age of consent under S/375 from 18 to 15 years could not be done as this a legislative act falling in the exclusive domain of the legislature.
  • To bring the POCSO Act in consonance with the exception to S/375 is a regressive solution compromising the objectives of other pro-child statutes, thus, not sensible.
  • To harmonize exception 2 to S/375 in such a manner to bring it in consonance with all other laws, thereby retaining the spirit of legislations that are in the best interest of children, was considered the most practical option.

The court decided that the exception 2 to S/375 must now be 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.” The bench at the end made itself cleared that it had not dealt in any way with the larger question of marital rape of adult women, i.e., women above 18 years of age. The crucial decision in this is a ray of hope in deciding the fate of many women who have been a victim of marital rape. May we move forward to accept this as a reality to be penalized which now is just a taboo.

[1] (2017) 10 SCC 800.

[2]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.”

[3](3) Nothing in this article shall prevent the State from making any special provision for women and children”.

[4] “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

[5] Devika Biswas v. Union of India, (2016) 10 SCC 726.

[6] Suchita Srivastava v. UT of Chandigarh, (2009) 9 SCC 1.

[7] The court on its Own Motion (Lajja Devi) v. State, 2012 SCC OnLine Del 3937.  

[8] (Visited on May 31, 2020).

[9] “The UN Secretary General’s In-Depth study on all forms of violence against women.” Para 111 (9-10-2006).

[10] Government of India, Report: Study on Child Abuse: India 2007 (Ministry of Women and Child Welfare,2007).

[11] “A Statistical Analysis of Child Marriage in India”, Based on Census 2011 published by Young Lives and National Commission for Protection of Child Rights.

[12] C.R v. United Kingdom, (1995) 21 EHRR 363.

[13] The Protection of Women from Domestic Violence Act, 2005(Act 43 of 2005), s. 2(d).

[14] Satyawati Sharma v. Union of India, (2008) 5 SCC 287.

Jyoti Bhagchandani from Amity Law School Delhi GGSIPU

A lover of books, newspapers, gardening, and dance. I gracefully handle the tantrums life throws at me.”

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