Case Study: Independent Thought V. Union Of India & Anr

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Citation: (2017) 10 SCC 800.

Decided on: October 11, 2017

Court: Supreme Court of India

Bench: Division Bench (Justice Madan B. Lokur and Justice Deepak Gupta)

Author’s insight and comments

Patriarchy has always been an inseparable part of our society. It fuels various other social issues, including domestic violence, female infanticide, and marital rape. In furtherance of this patriarchy, women are treated subordinate to men since time immemorial. The husband’s dominating position in the marriage led to the granting of immunity to the husband in cases of marital rape. On one hand, we talk about women’s rights in marriage; on the other hand, we deny their equal status with their husbands.This hypocrisy of the Indian society has taken us to a point where we tend to ignore one of the most important social evil of the society despite knowing the consequences of marital rape on a girl. We are still struggling to criminalize it.

This judgment is of phenomenal importance; concerning shaping the laws to make it suitable for changing times. It also depicted the progressive opinion of the Indian Judiciary on the issue of marital rape. The arguments given by the Union of India in their counter affidavits uch as the favoring the child marriages just because it is a part of our tradition depicts the hypocrisy of the Government in dealing with such sensitive social topics. However, the role played by the judiciary in rejecting those arguments was a step towards a better and safe society for women and girls. The observations and statements made by the judges in the judgment are the flag bearers of future cases against marital rape. The only plot which was left undiscussed was the wider issue of marital rape. As mentioned by the then Chief Justice Deepak Gupta-

“It may be made clear that this Court is not going 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.”

An analogy that can be drawn here is that forced sex by the husband when the wife is above 18 years of age would not qualify as marital rape. This should be adjudicated as soon as possible for addressing the plight of hundreds of women going through it.

Nevertheless, the issues raised in the writ petition were duly addressed, and this judgment makes an undeniable dent in the marital rape exemption.

Facts of the present case

An NGO- Independent Thought filed a writ petition[1]in the Supreme Court of India under Article 32[2] of the Constitution of India against the violation of the human rights of married girls between 15 to 18 years.

The petitioner mentioned that section 375 of the Indian Penal Code prescribes 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 his wife.[3] However, exception 2 of the section creates an unnecessary distinction. It provides the husband of a girl child aged between 15-18 years to have non-consensual sexual intercourse with her, without being penalized under the IPC.[4]The petitioner claimed that Exception 2 of Section 375 of IPC violates Article 14, 15, and 21 of the Indian Constitution[5] which enables Parliament to make special provisions for women and children. In furtherance of the same, the petitioner claimed that it is also in conflict with the POCSO act[6]as a girl child between 15-18 years with a marital status has no rational nexus and there is no objective sought to be achieved by providing such an exception in rape.

Issues concerned

The court decided to adjudge the case on four main issues-

  • Whether the sexual intercourse between a man and his wife (between 15 and 18 years) of age can be termedas rape?
  • Whether Exception 2 to Section 375 of the Indian Penal Code, in so far as it relates to girls aged 15 to 18 years, is unconstitutional, arbitrary, discriminatory, and liable to be struck down?
  • Whether a girl below the age of 18 years is presumed to have consented for sex if she is married, provided that legal age for providing consent is 18 years and above?
  • Whether the exception in the section or presumption of the consent of a girl below the age of 18 years is a violation of articles 14, 16, and 21 of the Indian Constitution?

Arguments on behalf of the petitioner

  • The petitioner initially argued that merely because a girl child between 15 and 18 years of age is married, it cannot be assumed that she is mentally or physically capable of establishing conjugal relations with her husband. Subsequently, it stated that section 375 exception 2 puts any girl at a great disadvantage contrary to the philosophy of article 15(3) of the constitution.
  • To support his points mentioned in the petition, the petitioner contended that section 375 of IPC should also reflect the same spirit as the Child Marriage Restraint Act of 1929, which prohibits a girl below 18 years to marry. He mentioned that the section should also prohibit sexual intercourse with the girl below 18.
  • 172nd Report of Law Commission of India[7] stated that the exception could not be deleted as it could interfere in the personal marital relationships. However, the report recommended an increase in the age from 15 years to 16 years. In simple words, the report suggested that the sexual intercourse between a man and his wife not below the age of 16 years is not sexual assault.
  • The petitioner also relied on various reference documentary material to highlight the adverse social consequence of the exception of the girl child’s mental and physical health. Such as violence, neglect, abandonment, low education, under nutrition, higher maternity mortality, and infant mortality rates.
  • Providing the analysis of IPC sections, the petitioner contended that the exception is contradictory in itself as the acts less grave than rape are punishable under section 354 of IPC. However, the non-consensual sexual intercourse with her wife (15-18 years) is not punishable.
  • POCSO Act provided punishment for the offense of aggravated penetrative sexua lassault. There is no clear difference between the definition of rape in terms of Section 375 of the IPC and penetrative sexual assault in Section 3 of the POCSO Act.[8] After a combined reading of both the legislations, there is a clear artificial distinction as a girl child is a victim of rape under the POCSO act but not under IPC.

Arguments on behalf of the respondent

  • With reference to the 172nd Report of LCI,[9]removing the exception 2 of section 375[10] may amount to interference in the marital relationships of individuals.
  • The Union of India filed a counter-affidavit to cull out the justification in opposition to the writ petition. In the counter-affidavit, Union of India supported the exception 2 of section 375 based on following points:
  1. The exception saves the husband from getting punished if the marriage was solemnized at 15 years. The respondent also stated that due to uneven economic, educational development, and social-economic conditions, the exception would protect the husband from criminalizing sexual activities between the two.
  2. With reference to the data National Family Health Survey-III,there are 23 million child brides in the country. Criminalizing sexual intercourse between married couples would be inappropriate and impractical.
  3. Exception 2 of section 375[11]considered the reality of the country.
  • In the course of oral submissions, the following were the justifications given by the respondent:
  1. By getting married, a girl is believed to have consented for the sexual intercourse with her husband either expressly or by necessary implication.
  2. As the tradition of child marriage is prevalent in our society for very long, it should be respected and not destroyed.
  3. According to a report,[12] marital rape has the capability of destroying the institution of marriage.

Judgment by Hon’ble Justice Madan B. Lokur

The judgment delivered by Justice Madan B. Lokur was centered on the following points-

  • The exception 2 in section 375 of IPC creates an unnecessary artificial distinction with no rationale objective and is not in the girl child’s interest. Its distinction might encourage girl-child trafficking, which is a horrible social evil.
  • Considering the issue of artificial distinction and the extensive reading of the POCSO Act[13]and IPC,[14] it can be inferred that there is no clear distinction between punishment for rape[15]and aggravated penetrative sexual assault.[16] Also, rape is the extension of sexual assault. There is nothing but the notional and linguistic difference between the two, which should be removed as it is completely arbitrary and discriminatory.
  • The exception opposes the philosophy of article 15(3) and Article 14 of the Indian Constitution. The spirit of the article provides liberally constructed affirmative actions to the girl child. It must override any other legislation that seeks to restrict the benefit made available to a girl child. It was held that law could not be static.[17]That was the reason there has been a change in the minimum age of marriage. Similarly, the exception[18] which is violative of theconstitution[19]should be changed.
  • It is contrary to the bodily integrity and reproductive choices of the girl child. A girl child is awarded certain human rights irrespective of her marital status. Exception 2 undermines those human rights by presuming a girl as a property of her husband. The judge further said that this incongruity or conflict between these provisions must be resolved speedily in the girl child’s best interests.
  • The age of consent for sexual intercourse is definitely 18 years and there is no dispute over this. Therefore, under no circumstance can a child below 18 years of age give consent, express or implied, for sexual intercourse.
  • Even if the tradition of child marriage is prevalent in our society from way too long, it would be an injustice to accept such a harmful tradition in the interest of the girl child and eventually society.[20]
  • After a complete assessment of all the points including harmonious and purposive interpretation of laws, the Bench concluded with five options for one to be implemented-
  1. To let this exception remain, putting at stake life of thousands of innocent young girls.
  2. To strike down the exception 2 of section 375 of IPC.
  3. To reduce the age of consent from 18 yrs. to 15 yrs.
  4. To bring the POCSO Act in consonance with Exception 2 to Section 375 of the IPC.
  5. To read exception 2 in a purposive manner taking into account the girl child’s pro-child legislation and human rights.
  • Hence, to protect the vision of constitution-makers, Exception 2 to Section 375 of the IPC will now be meaningfully read as:

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

Judgment by Hon’ble Justice Deepak Gupta

In this case, Justice Deepak Gupta gave a concurring judgment, i.e., he gave other reasons while reaching the same conclusion. The following are the key takeaways from his judgment-

  • Article 14 of the Constitution: Exception 2 decriminalizes the forceful sexual intercourse by a husband and his wife between 15-18 years. Therefore, it is arbitrary. Moreover, it is discriminatory because it discriminates between an informed girl child who is protected, albeit she has sexual activity whereas, it does not help a married girl between 15-18 years, albeit she is subjected to possess forceful sexual activity by her husband. Therefore, Exception 2, being discriminatory and arbitrary, is violative of Article 14 of the Constitution.
  • Further, in consonance with the other sections of IPC, an anomalous and astounding situation is created. If the husbands beat his wife (below 18) and had forcible sexual intercourse with her, he may be charged for offenses under Sections 323, 324, and 325 IPC, but he cannot be charged with rape.
  • Taking into consideration the POCSO act, Hon’ble Justice concluded that it is the matter of inconsistency, as the offense of penetrative sexual assault is punished in one legislation that is POCSO act and the offense of rape which is the extension of the same is not punishable under IPC, provided that the section of IPC and the section 3 and 5 are identical.
  • Exception 2 of section 375 should be read in consonance with the constitution and POCSO act. It was concluded that the court had not created any new offense concerning the offense of Rape, it has only removed the unconstitutional and offensive part.
  • It is also clarified that Section 198(6) of the Code will apply to rape casesof “wives” below 18 years. Cognizance can be taken only following the provisions of Section 198(6) of the Code.[21]

Obiter Dictum

  • Taking into consideration the article 15 (3) of the Indian constitution,[22] the apex court inferred through the text by Dr. B. R Ambedkar that the amendment in the article favored the special provisions for women and children to integrate them into society and take them out of patriarchal control. However, a similar integration could not be achieved by making special provisions for Scheduled Castes and Scheduled Tribes. It would have the opposite effect and further segregate them from the general public.
  • While considering the Right to bodily integrity and reproductive choice, the court recognized the Right to every person’s privacy, including unchaste women. Judges further considered that collection of voice samples, which may affect women’s bodily integrity, must have legal sanctions.
  • While answering to the justification given by UOI, the court held that “Marriage is notinstitutional but personal – nothing can destroy the ‘institution’ of marriage except a statute that makes marriage illegal and punishable.”
  • In between the interpretation of the special laws for the benefit of children, the court observed that “the subject-matter and the perspective of the statute are determinative of the question whether a statute is a general law or a special law. Therefore, for certain purposes, a statute might be a special law. However, for other purposes, as compared to another statute, it might be a general law.”[23]
  • Justice Deepak Gupta, in his judgment, while considering the wisdom of Parliament in restraining the age of 15 in exception 2 of section 375 of IPC,[24]held that In our constitutional framework, where there is a division of powers, each repository of power must respect the other. This Court must extend to the Parliament the respect it deserves. One cannot and should not impute ignorance to the legislature. He also observed the responsibility of the court in striking down laws as unconstitutional unless it is shown that the law violates the constitutional provisions or the fundamental rights of the citizen.

 

By-

Ananya Bhargava, 

Dharmashastra National Law University

 

 

[1] W.P (Civil) No. 382 of 2013.

[2] India Const. Art. 32. 

[3] Indian Penal Code, No.45, § 375 (1860).

[4] Indian Penal Code, No.45, § 375 exp. 2 (1860).

[5] India Const. art. 14, 16, 21.

[6] Protection of Children from Sexual Offences Act, No. 32 (2012).

[7] Law Commission Report No. 172, Review of Rape Laws (2000).

[8] Protection of Children from Sexual Offences Act, No. 32, § 3 (2012).

[9]Supra 8.

[10] Supra 4.

[11] Supra 4.

[12] Parliamentary standing committee of Rajya Sabha, Report No. 167 (2013).

[13] Protection of Children from Sexual Offences Act, No. 32, § 3,6 (2012).

[14] Indian Penal Code, No.45, § 375, 376(1) (1860).

[15] Indian Penal Code, No.45, § 376(1) (1860).

[16] Protection of Children from Sexual Offences Act, No. 32, § 6 (2012).

[17]Megh Singh v. State of Punjab, AIR (2003) SC 3184.

[18] Supra 4.

[19] Supra 7.

[20]( in response to the counter affidavit filed by the Union of India). 

[21] Indian Penal Code, No.45, § 198(6) (1860).

[22] Supra 5.

[23] Life Insurance Corporation of India v. D.J. Bahadur, (1981) 1 SCC 315.

[24] Supra 4.

 

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