By Ayush Upadhyay
In the Supreme Court of India
| NAME OF THE CASE | Independent Thought v. Union of India & Anr. |
| CITATION | Writ Petition (Civil) No. 382 of 2013 |
| DATE OF THE CASE | October 11, 2017 |
| APPELLANT | Independent Thought |
| RESPONDENT | Union of India & Anr. |
| BENCH/JUDGE | MADAN B. LOKUR & DEEPAK GUPTA |
| STATUTES/CONSTITUTION INVOLVED | Constitution of India; Indian Penal Code, 1860; Protection of Human Rights Act, 1993 |
| IMPORTANT SECTIONS/ARTICLES | Constitution of India – Article 14, 15, 21 and 32 Indian Penal Code, 1860 – Section 375 Protection of Human Right Act, 1993 – Section 2(1)(d) |
Abstract
In this case, the petitioner Independent Thought a society was registered on 6/8/2009 which has been working in the Welfare of child rights filed writ petition no. 382/2013 resentment on exception 2 of the section 375 of the Indian Penal Code, 1860 before the Apex Court to decide the lawfulness of this exception if it was occurred with minor girl child who was married between the age of 15 to 18. The Exception clearly discloses that a man cannot be accused of rape of his wife if she was above the age of 15 years.
This exception originated as exclusion of the Marital Rape. The Apex Court on 17 September 2017 extended the period of consensual sexual intercourse from 15 to 18 years in the marriage. As foregoing provision is not criminalised the sexual exploitation by husband with his wife above the age of 15 years. It is totally not in the harmony of the several statutes. This exception was irregular to the other statues like IPC and The Protection of Children from Sexual Offences Act,2012 Where age of consent is 18 years. The Supreme Court after adjudicated the issue they came to read down the provision, as it was abnormal with the IPC & POCSO where age of consent is 18 years.
Introduction
In the present case, Independent Thought v. Union of India & Another. The petitioner/applicant was Independent Thought a recognised and registered society working for the welfare and development of child and women rights and responded were Union of India and National Commission for Women. The matter which has been raised in this case was related to exception 2 of the section 375 of the IPC, defines sexual intercourse by the man with his wife will not be considered as rape if she was above the age of 15 years. The Exception 2 of section 375 of IPC contemplates that marriage occurred in way of tradition at the age of 15 years it should not liable the husband for the offence of rape and he can have sexual intercourse with his wife without consent. The Exception normally known as rape in marital obligation but not concluded in the decision.
Marital rape:
Marital rape as the word in itself defines a kind of sexual violence. Marital rape refers to forcible sexual assault or violence by one spouse towards the other. It is violent and brutal and the use of violence by the husband towards his spouse to have sexual relation with the wife is the essential element of marital rape. Thus, the husband will be liable if he commits an offence is by the use of physical force and the absence of which would not amount to the commission of an act[1]. In the recent study conducted in Mumbai, Deosthali found that 828 (46.4%) of 1783 women confided to counsellors that they had suffered marital rape while requesting help from domestic violence. The data in contrast, only 18(1.1%) of 1664 women actually reported marital rape to hospital in medicolegal form[2].
FACTS OF THE CASE
By the criminal law amendment of 2013, the consensual age of sexual intercourse was extended to 18 years provided under section 375 of IPC. But the exception enshrined in the section 375 which permitted husband to do a non-consensual sexual demonstration with his wife between 15 to 18 years old. This exception was inconsistent with the section 3 of the Prevention of Children from Sexual Offences act, 2012.
The petitioner Independent Thought an NGO & registered society dealing with the child and human rights. On 11/06/2013 filed a writ petition under the ambit of Article 32 of the Constitution of India, challenging the lawfulness and constitutionality of exception 2 of the section 375 of the IPC as it infringes the rights of married girl child between 15 to 18 years. The Home Ministry of United Progressive Alliance (UPA) was filed counter affidavit in this regard as response to the petition was later adopted by the current government National Democratic Alliance (NDA) in the year 2014. The Child Rights Trust was appreciated on record as intervenor in this case on 28/08/2017. The division bench of the Apex Court agreed on the contention of the applicant & read down this exception.
ISSUE RAISED BEFORE THE COURT
1. Whether the Exception 2 of Section 375 of IPC was considered discriminatory & arbitrary by which violates Art. 14, 15, 21 of the Constitution?
2. Whether sexual intercourse between a husband and his wife who is girl of between 15 to 18 years, institute rape?
3. Whether Exception 2 of section 375 of IPC violates Article 14 by separating between wedded & non- wedded minor girls?
ARGUMENTS FROM THE APPELLANT SIDE
1. Learned counsel for the petitioner submitted that Exception 2 of the IPC was not aiding in relation with the positive qualification between married and unmarried minor girl. It was also contended that this provision conflicts with the Article 14 and Article 21 that was a fundamental aspect of an individual.
2. The 84th Law Commission report on 25 April 1980 which stated that the present provision is inconsistent with the age considered for the marriage. Petitioner pointed out that a girl married under 18 years does not institute a maturity of mind, sanity & firmness of mind to think in a rational manner.
3. Learned counsel for the petitioner informed practicality of the section 375 of the IPC meant to describe that a woman under 18 years as a child and their Exception stated that if sexual violence happens against minor wife in that case the doer(husband) will not be liable.
4. Exception 2 of the section 375 of IPC is also not in conformity with provision mentioned in Article 15(3) of the Constitution which is for the protection and development for the child and women, but rather to develop it is going to ruin the goal behind it. The Child Rights Trust (intervenor) introduced new issues regarding psychological and mental fitness of the minor girl being hitched.
ARGUMENTS FROM THE RESPONDENT SIDE
1. The learned counsel for the respondents submitted that they were not against the contended provision by the petitioner (Exception 2 of s. 375 of the IPC). The learned counsel for respondent replied that with the Exception2 of s. 375 of the IPC husband would be discharged from criminal liability but he will be charged in other provision E.g., if a man causes harm while sex to her then he will be held liable for offences u/s 323,324&325 of IPC as the case may be. So, it is not fair and reasonable.
2. The respondent argued that Child Marriage has been an ancient tradition in the Indian society yet it was illegal, but spread everywhere as social norm and the minor girl had also accepted to intimate with her wedded husband.
3. The counsel for the respondent divulged some statistics that were revealed by National Family Health Survey’s 3rd report in the year 2005. It was mentioned that 46% of women under the ambit of 18 years. Therefore, penalizing these marriages would not be fair as the purpose of the marriage defeated.
4. The counsel for the respondents contended that the girl child had agreed to have sexual intercourse with her husband either expressly or impliedly.
Related Provision
- Constitution of India
- Article 14
Equality before law 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]
- Article 15
Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.[4]
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to
(a) Access to shops, public restaurants, hotels and palaces of public entertainment; or
(b) The use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.[5]
(3) Nothing in this article shall prevent the State from making any special provision for women and children.[6]
- Article 21
Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.[7]
The “right to life” enshrined in Article 21 of the Constitution is not just a right to live as animal living. The Court has always held that right to live envisages right to live with human dignity.
- Article 32
Remedies for enforcement of rights conferred by this Part (1) the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed[8]
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.[9]
- India Penal Code, 1860
- Section 375
Rape A man is said to commit “rape” if he—
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,
under the circumstances falling under any of the following seven descriptions: —
First. —Against her will.
Secondly. —Without her consent.
Thirdly. —With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly. —With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly. —With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly. —With or without her consent, when she is under eighteen years of age.
Seventhly. —When she is unable to communicate consent.
The Protection of Human Rights Act, 1993
- Human Rights
Section 2(1)(d) of the Protection of Human Rights Act of 1993[11]
“Human Rights” means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by the courts in India.
Judgement
On October 11, 2017 an epoch-making verdict was delivered by the division bench of the Supreme Court of India. The division bench consisted of Justice Madan B. Lokur and Justice Deepak Gupta. The bench considered after reading the Exception 2 of section 375 of the IPC which was in the contention of the petitioner. The section read down as the sexual violence by the man with his wife between 15 to 18 years is not rape. The 2 Judges Bench held that the age of consensual sexual intercourse should be extended to 18 years for wedded couple. This provision was not consistent with several statutes like POCSO, the Prohibition of Child Marriage Act, 2006, & the Juvenile Justice (Care and Protection of Children) Act, 2000 point out age of child who is under 18 years but this exception is contrary to these acts.
The Court observed that person under age of 18 years has a duty not to infringe their wife’s right to bodily liberty & consensual sex. The Court in his opinion determined that exception provided in this section 375 of IPC is unjust, unreasonable & arbitrary in consequence.
The 2 Judges Bench came to the determination of the Exception 2 of section 375 of IPC that it violates the minor wedded wife’s right & to be annulled from the effect. The Court further pointed out that it goes contrary to the POCSO’s provision & other statutes. The Supreme Court read down exception 2 of section 375 of IPC as it unpleasant and repugnant in consequences. The Court decided that a child always treated a child whether girl child is legally wedded or not married girl child or a widowed girl child. In addition, consensual age for sexual activity is absolutely 18 years without any doubt. The Court expressed that an early age marriage is detrimental for the girl child’s development. This judgement would not be considered in the scope of Marital Rape. The Court is describing their view on unsatisfied justification made by the public authority for holding consensual age of 15 years. The Bench has held that a minor girl wouldn’t be able to have consent for sexual demonstration with her by means of ditched. The Court in his view implying that a lawful marriage does not stay with accessibility for man to have sexual intercourse irrespective of consent or acceptance from his wife. A Women is allowed to live with dignity, protection and reproductive choice of her provided in these cases: Suchita Srivastava and Anr. v. Chandigarh Administration[12], State of Maharashtra and Another v. Madhukar Narayan Mardikar[13].
Conclusion
By expressing a remarkable and ground breaking verdict in Independent Thought v. Union of India and Another. It has given a better opportunity for female minors to protect her from social evils. In this Case lay hold of an historic step in upholding the development of health and education of minor married girl. The Apex Court rules that exception 2 of section 375 of the IPC which had earlier discharged the doer from criminal liability for rape & permitted him to have sex with his spouse with irrespective of consent. This judgement is astounding significance with regard to develop the law for changing needs of the society. The Court is not intending to create an offence but only detaching the provision was unjust, unfair and unreasonable. The verdict did not discuss on issue where the doer i.e., husband is minor and would be immature too. After considering this case, it provides a specific right to the married girl who supposed to be free from cruel and inhuman behaviour from his partner. Now, we have to focus on implementation of several verdict in favour of women and minor child. According to my view, this verdict will be decreased the demonstration which minor girl has suffered mental disorder, incurable diseases and several other problems. This case does not consider the matter related to marital rape. It refers only among the minor married girl who has been sexually assaulted by her husband between the age of 15 to 18 years.
The Court has applied the reasoning for concluding that Exception 2 of section 375 of IPC is violative of fundamental Rights was similarly pertinent to a girl above 18 years old whose right to live with dignity is dishonoured by the vigorous and forceful sexual intercourse.
.
[1] Ketan Tiwari and Mansi Bisht, Marital Rape: License to Rape or not?, 4(3), IJLMH 366 – 375 (2021), <https://doij.org/10.10000/IJLMH.11467> accessed 21 June 2023.
[2] Rao TSS, Shah N, Andrade C., Marital Rape in India, Journal of Psychosexual Health, 4(4), 221-222 (2022), <https://doi.org/10.1177/26318318221131745> accessed 21 June 2023.
[3] The Constitution of India, 1950, Art. 14.
[4] The Constitution of India, 1950, Art. 15(1).
[5] The Constitution of India, 1950, Art. 15(2).
[6] The Constitution of India, 1950, Art. 15(3).
[7] The Constitution of India, 1950, Art. 21.
[8] The Constitution of India, 1950, Art. 32(1).
[9] The Constitution of India, 1950, Art. 32(2).
[10] See The Indian Penal Code, 1860, §375.
[11] The Protection of Human Rights Act,1993, No. 10, Acts of Parliament, 1993(India).
[12] Suchita Srivastava and Anr. v. Chandigarh Administration (2009) 9 SCC 1
[13] State of Maharashtra and Another v. Madhukar Narayan Mardikar AIR 1991 SCC 57
