By – Kavya Singh

In the Supreme Court of India 

NAME OF THE CASE	Independent Thought vs. Union of India & Anr.
CITATION	Writ Petition (Civil) No. 382 of 2013
DATE OF CASE	October 11, 2017
APPELLANT	Independent Thought
RESPONDENT	Union of India & Anr.
BENCH/JUDGE	Madan B. Lokur and Deepak Gupta
STATUTES / CONSTITUTION INVOLVED	Article 14, Article 15 and Article 21 of construction of India

ABSTRACT 

Independent Thought, an association working for the privileges of ladies and children, filed writ petitions 382/2013 before Supreme Court for provoking Exception 2 to Section 375 of the IPC to the degree of its appropriateness if there should arise an occurrence of minor young ladies. The Exception, all the more ordinarily known as the Marital Rape exclusion, expresses that a man can not be accused of rape of his wife provided that the wife is not under 15 years old. On 17 September 2017, the Supreme Court expanded the period of consent for sexual intercourse within marriages to 18. Preceding the decision, sexual demonstrations by a husband on his wife, where the wife was over 15 years old, did not comprise rape with the end goal of criminal law. This lead to a legal anomaly as the period of consent is 18 years, both in the Indian Penal Code and different unique rules sanctioned for children, notably POCSO.

INTRODUCTION

In this case, Independent Thought v. Union of India, the applicant was Independent Though, an enlisted society that has been working in the government assistance of child rights, and the respondents were the Union of India and National Commission for Women. Section 375 of IPC defines rape and has added an arrangement managing the period of consensual sex as 18. Exemption 2 to Section 375 says that a husband can have non-consensual sex with her significant other who is somewhere in the range of 15 and 18 years old. The Exception, all the more normally known as the Marital Rape exclusion, expresses that a man can not be accused of assault of his wife provided the wife is under 15 years of age. The Child Rights Trust was welcomed on record as Intervenor for the situation on 28.08.2017. The issue raised under the watchful eye of the pinnacle court was to choose the legality and lawfulness of Exception 2 to Section 375 of IPC. The division bench of the Supreme Court offered to agree on thoughts to choose the case in the blessing of the applicant. It read down Exception 2 to Section 375 of IPC and cleared that anything in the judgment will not be contemplated with the issue of “marital rape”.

BACKGROUND 

The Supreme Court considered whether or not sex between a man and his wife other being a young lady somewhere in the range of 15 and 18 years old would be rape. Despite the fact that Exception 2 to Section 375 of the Indian Penal Code, 1860 (IPC) gave something else, the Supreme Court limited the extent of the special case and settled the incongruity between the Indian Penal Code, 1860 (IPC) and Protection of Children from Sexual Offences Act, 2012 (POSCO Act) by raising the period of agreeing to 18 years for ‘marital’ sex, to save and ensure the basic freedoms of a wedded young lady youngster. The Court embraced a purposive methodology and read Exception 2 to Section 375, IPC down. 

The Court noticed that the Exception made an unnecessary and counterfeit differentiation among married and unmarried young ladies, with no reasonable nexus to the goal of the Section and held it to be self-assertive and biased under Articles 14 and 15 and violative of essential human pride ensured under Article 21 of the Constitution. The Court additionally noticed that the Exception was opposing to the plan created by other supportive of youngster enactments including POCSO, which, being unique enactments, would win. 

While the Court noticed a scope of cases fostering the connection between the right to security and parts of Article 21, it did not examine exhaustively the pertinence of the right to the current case. In his agreeing judgment, Justice D. Gupta recommended that this was on the grounds that the right to protection was accessible to all ladies, and did not bear an explicit connection to married young lady youngsters between the ages of 15-18, who were the subject of the request.

FACTS OF THE CASE 

In 2013, a child rights association, Independent Thought, recorded a writ appeal in the public interest under the steady gaze of the Supreme Court. This appeal provoked the lawfulness of Exception 2 to Section 375 of the IPC which decriminalised sexual inter Ouse by a husband with his wife between the ages of 15 and 18 years. The Petitioners affirmed this arrangement disregarded the privileges of a wedded girl child between the ages of 15-18 years, since in any remaining occurrences under the IPC the period of assent for sex was 18 years. The request looked for explanation and harmonisation of Exception 2 with existing laws on youngster marriage and kids’ privileges.

The Criminal Law Amendment Act, the period of agreeing to sex was expanded from 15 to 18 referenced under Section 375 of the Indian Penal Code. Be that as it may, there was a special case provision to this Section i.e., under Exception 2, a husband can have non-consensual sex with a girl child (for example under 18 years) in case she is over 15 years. In 2012, the POCSO Act was passed which likewise set the base age for the consensual sex as 18 years. Exception 2 was conflicting with Section 3 of the POCSO act which has condemned penetrative sexual assault. The applicant, Independent Thought is a National Human Rights association which was enlisted on 06.08.2009. On 11.06.2013, the applicant in broad daylight interest documented a writ request under Article 32 of the Constitution testing the legitimateness and legality of Exception 2 as it was both discretionary and oppressive towards the girl child. In February 2014, the Home Ministry under the United Progressive Alliance (UPA) government recorded a counter-testimony which was likewise later received by the National Democratic Alliance government, on the side of the Exception.

ISSUE RAISED BEFORE THE COURT

The issue raised before the Supreme Court by accused are –

•Regardless of whether Exception 2 to Section 375 IPC violate Article 21 by keeping a lower age for married girls?

•Whether Exception 2 to Section 375 IPC abuse Article 14 by segregating among married and unmarried minor girls with regard to sexual violence.

• Whether an exemption in the IPC can be made to the age of assent all around fixed by the Parliament at 18 years for young ladies in any remaining rules?

ARGUMENTS FROM THE APPELLANT SIDE

• The Appellate argued that Exception 2 was subjective and prejudicial, as it made a counterfeit qualification between the privileges of a married and unmarried girl child between the ages of 15-18 years. 

• It was argued that this classification neither had an unmistakable target, nor any sensible nexus with the (indistinct) objective of Section 375, IPC. Hence, Exception 2 was against the fundamental precepts of Article 14 and Article 21, just as in opposition to the advantageous aim of Article 15(3), which empowered Parliament to make unique arrangements for ladies and kids. 

• Taking into account that practically all rules in India including Section 375 of the IPC perceived a young lady under 18 years as a kid and punished sex with a girl child below 18 years, the Petitioner fought that a similar situation of law ought to be reflected in Exception 2 to Section 375 of the IPC, to safeguard the right to substantial uprightness and sexual self-governance of the young lady kid. The Intervenor (Child Rights Trust) raised extra issues identifying with security and physical and psychological wellness.

 ARGUMENTS FROM THE RESPONDENT SIDE

• The Respondent state argued that child marriage, however illegal, was as yet a social reality and to a great extent pervasive in the nation, and hence, Exception 2 tried to ensure consensual child marriages. Condemning these relationships would focus on specific segments of society and their customs. 

• The Respondent also argued that by prudence of getting married, the girl child had agreed to sex with her better half either explicitly or by important ramifications.

RELATED PROVISION 

Article 14 in The Constitution of India 

Equity before law The State will not deny to any individual uniformity under the watchful eye of the law or the equivalent security of the laws inside the domain of India Prohibition of separation on grounds of religion, race, standing, sex or place of birth.

Article 15 in The Constitution Of India 

Prohibition of discrimination on grounds of religion, race, standing, sex or place of birth 

(1) The State will not discriminate any resident on grounds just of religion, race, position, sex, the spot of birth or any of them 

(2) No resident will, on grounds just of religion, race, rank, sex, the spot of birth or any of them, be dependent upon any incapacity, responsibility, limitation or condition concerning 

(a) admittance to shops, public cafés, inns and castles of public diversion; or 

(b) the utilisation of wells, tanks, washing ghats, streets and spots of public retreat kept up with completely or halfway out State assets or committed to the utilisation of the overall population 

(3) Nothing in this article will keep the State from making any unique arrangement for ladies and youngsters 

(4) Nothing in this article or in proviso ( 2 ) of Article 29 will keep the State from making any extraordinary arrangement for the headway of any socially and instructively in reverse classes of residents or for the Scheduled Castes and the Scheduled Tribes 

Article 21 of The Constitution of India 

Protection of life and individual freedom No individual will be denied of his life or individual freedom besides as indicated by a system set up by law. Our constitution ensures everybody the principal right to carry on with an existence with pride, along these lines it’s a good idea for the young lady kid to have a similar right of existence with nobility which this exemption detracts from her. This counterfeit differentiation thoroughly dismisses the terrible social evil of illegal exploitation by permitting sex with a wedded young lady of 15 to 18 years old and the effect it makes on our general public on the loose.

Exception 2 to Section 375 of the IPC

Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. Unfortunately does not consider the rape of a married child between 15 to 18 years of age rape and therefore not an offence, her husband for the purposes under section 375 effectively has full control over her body and can have sexual intercourse without her willingness is not considered to be rape under IPC 1860. She is married to him only because this offence is not punishable out of respect for the various customs and traditions of the country. This states that 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 penalised under the IPC, she is married to him only because of this and for no other reason and that is fully against the basic human right i.e. right of the girl child to decline the sexual intercourse if she doesn’t want to have been taken away by the statute.

JUDGEMENT 

On 11 October 2017, a 2 Judge Bench of the Supreme Court conveyed its verdict. The Bench consistently read down Exception 2 to Section 375 of the Indian Penal Code, the arrangement that characterises the offence of rape, which expresses that “Sex or sexual demonstrations by a man with his own wife, the wife not being under 15 years old, isn’t rape”. It held that the time of assent should be perused to 18 and not 15 with the end purposes of the Exception. As a result, this would imply that Exception 2 would peruse Sexual intercourse or sexual demonstrations by a man with his own significant other, the spouse not being under 18 years old, isn’t assault, consequently making constrained sex by a man with his minor wife an offence under the assault laws of the IPC.

Exception 2 to section 375 of the IPC is violative of Articles 14, 15 and 21 of the Constitution as it was stated by the applicant that making a description among unmarried and married minor girl for the reason of sexual violence, which carry no normal concern to the object of the Section and is further against to the responsibility of the State to guarantee the right of the youth, both under Article 21 similarly under International Conventions to which India is a party.

Justice Madan B Lokur conveyed his judgment noticing the importance of the recent issue and the evil effects of child marriages. Justice Deepak Gupta has presumed in an agreeing judgment the excellent case manhandles Article 14, 15 and 21 and is conflicting with POCSO. Seeing that child marriage is a despicable practice that genuinely impacts the wellbeing and prosperity of children, the result being more unmistakable for the young lady kid who is more helpless against physical and sexual savagery on account of the family and the accomplice, the court has seen that a young lady beneath the age of 18 does not stop to be a child according to the law just on the grounds that she has been hitched at an early age. Moreover, rape under Section 375 of the IPC is characterised along these lines as that of exasperated rape under the POCSO Act, with a similar discipline being recommended for the two offences under the particular resolutions and a man despises insusceptibility under the last which is an extraordinary law instituted towards satisfying the commitment on a piece of the State to make unique arrangements for ladies and children to get the wellbeing of the youngster. Thus, the disappointment of the Legislature to address the contention between the two arrangements has brought about the award of lawful authorisation to a demonstration in any case considered as deplorable wrongdoing and made a subjective differentiation among wedded and unmarried minor young ladies, one that has no sensible nexus with any article looked to be accomplished.

Voicing their lack of appreciation for the justification offered by the public authority for holding 15 as the age of consent under Exception 2 to Section 375, the equivalent being child relationships being a typical practice, the seat has held that by no means would it be able to be expected that a young lady kid in any case unequipped for consenting to sexual demonstrations can be said to have inferred a similar just by virtue of being hitched. Giving an amicable and purposive translation to all rules identifying with the privileges of kid, the seat has embraced a methodology that best gets the interest of the young lady kid and further ensures her essential right to freedom, fairness, and poise, the seat has held that Exception 2 to Section 375 of the IPC should be perused down. It has additionally been held that the Prohibition of Child Marriage Act, 2006 is a mainstream law and should abrogate every single individual law, all endeavours being made to get the target the establishment means to accomplish. In any case, there are constraints on the degree to which common society can battle the wickedness, and it is via enactment alone that substantial advances can be taken toward this path. In such manner, the court has cited the changes made by the State of Karnataka to the PCMA as a model for different states, wherein Section 3 of the Act has been revised to announce all relationships contracted where either party is a kid, for example, a kid underneath the age of 21 or a young lady beneath the age of 18, to be void in law, along these lines implying that no lawful relationship of spouse wife stays alive and insusceptibility for sexual demonstrations would not be accessible to a man.

CONCLUSION 

Independent Thought case has found a significant way to ensure the young girl child by condemning the sex with a wife under 18 years. In any case, the Supreme Court had not set out any uncommon arrangement for managing such situations where the interest of other children is additionally in question. It did not consider those situations where the husband is additionally a minor and would be pretty much as honest as the young lady if have consensual sex with her. In India, instances of eloping and marriage are extremely common, the Apex Court’s obliviousness towards such cases since they can be summed up under the youngster marriage arguments is against the interest of the kid. The Court likewise attempted to not remark on the “conjugal rape” issue where the young lady is over 18 years by underlining that “conjugal rape” isn’t the issue under the steady gaze of the court and judgment ought not to be seen at all for the issue of “conjugal assault”. The reasoning court applied for concluding that Exception 2 is violative of Fundamental Rights was similarly pertinent to a girl over 18 years of age whose right to poise is harmed by the powerful sexual relation.