The Exception 2, in so far as it relates to the girl child below eighteen years, is unreasonable, unjust, unfair and violative of the rights of the girl child.


[Case Brief] Independent Thought versus Union of India and Anr.


Case Name: Independent Thought versus Union of India and Anr.

Case Number: W.P.(C) No.-000382-000382 / 2013

Court:The Hon’ble Supreme Court

Bench: HON'BLE MR. JUSTICE MADAN B. LOKUR, HON'BLE MR. JUSTICE DEEPAK GUPTA

Decided on: 11/10/2017

Relevant Act/Sections: Exception 2 to Section 375 of the Indian Penal Code, 1860


BRIEF FACTS AND PROCEDURAL HISTORY:

1. In 2013, by the Criminal Law Amendment Act, the age of consent to sexual intercourse was increased from 16 to 18 mentioned under Section 375 of the Indian Penal Code. But, there was an exception clause to this Section i.e., under Exception 2, a husband can have non-consensual sex with a girl child (i.e. below 18 years) if she is above 15 years. In 2012, the POCSO Act was passed which also set the minimum age for the consensual sex as 18 years. Exception 2 was contradictory to the Section 3 of the POCSO act which has criminalized penetrative sexual assault.

2. The petitioner is a society registered on 6th August, 2009 and has since been working in the area of child rights. The society provides technical and hand-holding support to non-governmental organizations as also to government and multilateral bodies in several States in India.

3. It has also been involved in legal intervention, research and training on issues concerning children and their rights. The society has filed a petition under Article 32 of the Constitution in public interest 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.

4. 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.

5. Almost every statute in India recognizes that a girl below 18 year 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.


ISSUE BEFORE THE COURT:

1. Whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape?

2. Whether exception 2 to Section 375 IPC is discriminatory?


RATIO OF THE COURT:

1. Court did not go into the issue of “marital rape” of women aged 18 years and above and the discussion is limited only to “wives” aged 15 to 18 years.

2. After referring to the punishments under section 9, 10 & 11 of the Prohibition of Child Marriage Act, 2006, the court observed that the punishments provided are neither sufficiently punitive nor deterrent and the act needs serious reconsideration, especially in view of the harsh reality that a lot of child trafficking is taking place under the garb of marriage including child marriage.

3. The court observed that the PCMA is a secular Act applicable to all. It being a special Act dealing with children, the provisions of this Act will prevail over the provisions of both the Hindu Marriage Act and the Muslim Marriages and Divorce Act, in so far as children are concerned.

4. It is apparent that the legislature, in its wisdom, has universally enacted that a person below the age of 18 years is deemed to be a child unable to look after his or her own interests.

5. Counsel appearing for the petitioner and Counsel appearing for the Intervener indicated with a lot of material that child marriage is not in interest of the girl child.

6. More than one out of every 5 marriages violates the provisions of the PCMA and the Hindu Marriage Act, 1955.

7. Through various reports and data placed, the court observed that marriage of the child not only violates the human rights of a child but also affects the health of the child.

8. Any marriage of a child, i.e. a female aged below 18 years and a male below 21 years is void ab initio in the State of Karnataka, the court opined that this is how the law should have been throughout the country and the protection of Exception 2 to Section 375 IPC cannot be availed of by those persons, who claim to be “husband” of “child brides” pursuant to a marriage which is illegal and void.

9. If the law is discriminatory, arbitrary or violative of the fundamental rights or is beyond the legislative competence of the legislature then the Court is duty bound to invalidate such a law.

10. If this sexual intercourse is forcible and without the consent of the girl child, then also the husband is not liable for any offence. This law is definitely not right, just and fair and is, therefore, arbitrary.

11. The court observed that if the sexual intercourse is forcible and without the consent of the girl child, then also the husband is not liable for any offence. This law is definitely not right, just and fair and is, therefore, arbitrary.

12. The court observed that some extra benefit must be showered upon the girl child to ensure that she is not deprived of her right to life, which would include her right to grow and develop physically, mentally and economically as an independent self-sufficient female adult.

13. The court referred evidence from various reports and observed that girls who were married before the age of 19 years are likely to suffer medical and psychological problems.

14. The court referred to the National Plan of Action for Children, 2016 prepared by the Ministry of Women and Child Development, Government of India which stated that 30.3% marriages i.e. almost 1 in every 3 marriage takes place in violation of the PCMA.

15. It later added that when the age of consent is changed to 18 years, the minimum age of marriage is also 18 years and, therefore, fixing a lower age under Exception 2 is totally irrational. It strikes against the concept of equality

16. The court observed that the law discriminates between a girl child aged less than 18 years, who may be educated and has sexual intercourse with her consent and a girl child who may be married even before the age of 15 years, but her marriage has been consummated after 15 years even against her consent.

17. POCSO is a special Act, dealing with the children whereas IPC is the general criminal law. Therefore, POCSO will prevail over IPC and Exception 2 in so far as it relates to children, is inconsistent with POCSO.

18. A forceful sexual intercourse with a 15 or 16 years old girl child leads her to trauma which is injurious to her body as well as her mind. Exception 2 is violative of Article 14, 15 and 21 of the Constitution as it puts a girl’s both physical and mental health in serious jeopardy.


DECISION HELD BY COURT

1. The court 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.

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