Independent Thought v Union of India and Ors. (2017)

Independent Thought v Union of India and Ors. (2017)
                                          Case Comment by 
Archit Uniyal,
BBA LLB (Hons) 3rd-year student,
 O.P Jindal Global University.
Court: The Supreme Court of India
Bench: Madan B. Lokur and Deepak Gupta, JJ.
Decided On: 11.10.2017
Facts
  • The Petitioner, a registered society, working in the area of child rights, 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 married girls, between the ages of 15 and 18 years.
  • The Petitioner contends that almost every statute in India recognizes a girl below 18 years of age as a child and thus the law penalizes sexual intercourse with a girl below 18 years of age.
  • Consequently, Section 375 of the Indian Penal Code, 1860 (IPC) prescribes the age of consent for sexual intercourse as 18 years.
  • Therefore, having sexual intercourse with a girl child below 18 years of age would be statutory rape, even if the sexual activity was with her consent- as willingness or consent of a woman below the age of 18 years for having sexual intercourse is irrelevant as she is considered incapable of giving consent.
  • However, 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, for the sole reason that she is married to him. Hence, the present petition.
Issues
  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 of the IPC, in so far as it relates to girls aged 15 to 18 years, was unconstitutional under Articles 14, 15 and 21 of the Constitution of India and liable to be struck down.

    Rules

    – Section 375 of the Indian Penal Code, 1860 [1](definition of rape)
    – Exception 2 to Section 375 of the Indian Penal Code, 1860 (exception relating to marital sexual intercourse)
    – Section 6 of the Protection of Children from Sexual Offences Act, 2012[2]
    Arguments in favour of the Petitioner
    • Sec 375 exception 2 of IPC is arbitrary, discriminatory and contrary to the beneficial intent of Article 15(3).

    • Under Sec 2(d) of The Protection of Human Rights Act and Sec 3 of The Protection of Women from Domestic Violence Act, it’s a violation of human rights to have forceful sexual intercourse with a wife between the age of 15 to 18.

    • Law Commission of India in its 84th report stated that sexual intercourse with a girl below 18 years old be prohibited since the Child Marriage Restraint Act, prohibits the marriage of a girl of that age, and IPC should reflect that position.

      Arguments in favour of the Respondents

      • A husband should not be booked for the offence of rape under Section 375 exception 2 of IPC, if the marriage is solemnized at the age of 15 years due to traditions.
      • The girl child has consented to sexual intercourse expressly or by necessary implication by virtue of getting married with her husband.
      • Marital rape has the potential of destroying the institution of marriage according to the 167th report of the Parliamentary Standing Committee of the Rajya Sabha.
        Application
        Issue 1:
        • According to Exception 2 to Section 375 of the IPC, sexual intercourse between a man and his wife (being a girl between 15 and 18 years of age) is not rape.

        • However, here the Court regards sexual intercourse with a girl below 18 years of age as rape regardless of whether she is married or not as the Exception 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.

        • Further, the Court opines that there is no real distinction between the offence of penetrative sexual assault or aggravated penetrative sexual assault, under the Protection of Children from Sexual Offences Act, 2012 (POCSO) and the rape of a married girl child under the IPC.

        • Thus, the opinion of the Court was that marital rape of a girl child was effectively nothing but aggravated penetrative sexual assault and there was no rationale for the arbitrary and discriminatory distinction.

          Issue 2:

          • Article 21 of the Constitution gives the fundamental right to a girl child to live a life of dignity.

          • Child marriage in a sense takes away from this and subjects the girl child to sexual abuse.

          • The right to maintain her bodily integrity is compromised under Exception 2 of Section 375 of the IPC- effectively giving the husband full co
            ntrol over her body by giving him the power to subject her to sexual intercourse without her consent or without her willingness since such an activity would not be rape.

          • Exception 2 to Section 375 Indian Penal Code is held to be discriminatory and violative of Article 14 of the Constitution of India, in so far as it deals with the girl child.

          • The said 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.

          • This artificial distinction is contrary to the philosophy and ethos of Articles 15(3) and 21 of the Constitution, is inconsistent with other statutes and also goes against and India’s commitments in international conventions.
            Judgement

            • Rape is a heinous crime which causes trauma, violates the bodily integrity of a girl child and destroys her freedom of reproductive choice which is the right of a women and must be respected along with her right to dignity and privacy.

            • The State of Karnataka by inserting sub-section(1A) in Sec 3 of PCMA provides the most appropriate resolution to the conflict between IPC and POSCO Act declaring that the husband of the girl child is punishable under PCMA every child marriage solemnized henceforth is void ab initio.

            • The Protection of Children from Sexual Offences Act, 2012 states that the best interest and well-being of the child be regarded with paramount importance and law should operate keeping that in mind.

            • As defined in Sec. 5(n) of the POSCO Act, if the husband of a girl child commits penetrative sexual assault on his wife, he actually commits aggravated penetrative sexual assault and is punishable under Sec 6 by rigorous imprisonment of not less than ten year which may extend to imprisonment for life and fine.

              Considering these points in its judgement, the Supreme Court held that the Exception 2 to Section 375 of the IPC (in so far as it relates to a girl child below 18 years) was liable to be struck down on the following grounds:
              1. It was violative of Article 14, 15 and 21 of the Constitution of India as it was arbitrary and not fair, just and reasonable towards the rights of the girl child;
              2. It was inconsistent with the provisions of POCSO, which must prevail.
                The Court felt the need to harmonize the provisions of various statutes and also harmonize different provisions of the Indian Penal Code inter-se. Thus, the Supreme Court held that Exception 2 to Section 375 of the IPC is to 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.”
                Case Laws Referred

                • Suchita Srivastava v. Chandigarh Administration[3]
                • State Of Maharashtra And Another vs Madhukar Narayan Mardikar[4] 
                • Devika Biswas Vs. Union of India[5]
                • The State Of Karnataka vs Krishnappa[6]
                • Shri Bodhisattwa Gautam vs Miss Subhra Chakraborty[7]
                • The State Of Punjab vs Gurmit Singh & Ors[8] 

                  Personal Comments
                  • The judgement of the Supreme Court tackles the practice of child marriage in a progressive way- by highlighting the adverse effects it has on the physical and mental development of the girl child.

                  • What was particularly noteworthy was the way the judgement rejects the argument that striking down Exception 2 of Section 375 of IPC would have the potential of destroying the “sanctity” of the institution of marriage itself.

                  • However, this being said, I do not agree with the Court’s decision to refrain from commenting on the issue of marital rape if the wife is above the age of 18.

                  • In its judgement, the Supreme Court stated, “We make it clear that we have refrained from making any observation with regard to the marital rape of a woman who is 18 years of age and above since that issue is not before us at all.

                  • Therefore, we should not be understood to advert to that issue even collaterally.” This case presented the Court with the opportunity to address the issue of marital rape- which is still not an offence under the IPC. Sadly, the apex court refrained from addressing this social evil.

                    [1] https://indiankanoon.org/doc/623254/

                    [2] Protection of Children from Sexual Offences Act, 2012

                    [3] Suchita Srivastava v. Chandigarh Administration (2009) 14 SCR 989

                    [4] State Of Maharashtra And Another vs Madhukar Narayan Mardikar (1991) AIR SC 207

                    [5] Devika Biswas Vs. Union of India (2016) 10 SCC 72619

                    [6] The State Of Karnataka vs Krishnappa (2000) 4 SCC 75

                    [7] Shri Bodhisattwa Gautam vs Miss Subhra Chakraborty (1996) AIR 922

                    [8] The State Of Punjab vs Gurmit Singh & Ors (1996) SCC (2) 384
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