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Independent Thought vs. Union of India (2017) 10 SCC 800

Facts of the case:
  • The petitioner is a society registered a non-governmental organization, Independent Thought, as on 6th August 2009, The NGO deals in legal research, legal intervention, and training under child rights and the rights which concern children. The NGO also bestows hand-holding support, technical and legal support to many other non-governmental organizations. It also aids governmental bodies in several states.
     
  • The petitioner, Independent Thought approached the Honorable Supreme Court by filing a writ petition W.P.(C) 382/2013 under Article 32 of the Constitution in the interest of the public to emphasize the violation of the rights of the girl-child who are married and who are between 15-18 years old.
     
  • The petitioner seeking the writ in the declaration that Exception 2 to Section 375 of Indian Penal Code, 1860 (hereinafter referred to as IPC) is violative of Articles 14, 15, and 21 of the constitution. As Exception 2 of Section 375 of IPC states that it is not raping if a man has sexual intercourse with his wife who is above 15 years old and below the age of 18 years with or without her willingness or consent.
     
  • The petitioner claimed that since Section 375 of IPC states that a consensual sexual intercourse with a girl who is below 18 years will constitute rape and it will be irrelevant and inconsequential that the girl is his wife or not. So it should not be considered in Exception 2 to Section 375 of IPC that that man will get the immunity of rape merely because she is his wife and he has the bodily right over her.
     
  • The learned counsel for the petitioner stated that Exception 2 to Section 375 of IPC is not only arbitrary but discriminatory to Article 15(3) which provides Parliament to make special provisions for women and children but instead of uplifting them and making the provisions, the girl child is placed at a great disadvantage which is contrary to the vision and beneficiaries offered in Article 15(3).
     
  • Hence, according to the petitioner, the Exception to Section 375 of IPC was taking away the right of bodily integrity of girl child. The legality and constitutionality of the Exception was challenged as it was arbitrary as well as discriminatory in nature.

Issues raised
  • Issue 1: Whether sexual intercourse between a man and his wife who is a girl of age 15-18 years is a rape?
  • Issue 2: Whether Exception 2 to Section 375 of IPC is arbitrary?
  • Issue 3: Whether Exception 2 to Section 375 of IPC is discriminatory?
  • Issue 4: Is the court creating a new offense?

Arguments of both the parties
Issue 1: Whether sexual intercourse between a man and his wife who is a girl of age 15-18 years is a rape?
Arguments from Petitioner's side:
  • The petitioner claimed that since Section 375 of IPC states that a consensual sexual intercourse with a girl who is below 18 years will constitute rape and it will be irrelevant and inconsequential that the girl is his wife or not. So it should not be considered in Exception 2 to Section 375 of IPC that that man will get the immunity of rape merely because she is his wife and he has the bodily right over her.[1]
     
  • The learned counsel for the petitioner stated that Exception 2 to Section 375 of IPC is not only arbitrary but discriminatory to Article 15(3) which provides Parliament to make special provisions for women and children but instead of uplifting them and making the provisions, the girl child is placed at a great disadvantage which is contrary to the vision and beneficiaries offered in Article 15(3). [2]
     
  • Merely because a girl child is married doesn't mean that she has consented mentally or physically for having sexual intercourse with her husband or indulging in any other sexual activity or in conjugal relations with her husband.
     
  • They also contended that merely something is going on from past as traditional practice doesn't mean that it will be applicable in the current scenario and per se will be considered illegal and a criminal offense.
  • There is clear cut bias when a married girl between 15 to 18 years of age is having sexual intercourse with or without her consent does not constitute rape, whereas a girl below the age of 18 years having sexual intercourse with or without her consent can be constituted as rape.
  • The reasons established by the petitioner was that the girl who has been married and is below 18 years of age does not have emotional, physical, or mental stability, it will have detrimental effects on the girl child which will not only include physical or mental well-being but also nutrition, education, employability and her general well-being will also have adverse effects.
  • Under no circumstances married girl child below the age of 18 years has given consent impliedly or expressly to indulge in sexual activities.
  • The the reason why the marriage age is minimized at the age of 18 years because a girl who is below 18 years of age will have emotional effects and will also suffer from medical concerns in the future. Child marriage in the majority of cases land to unwanted pregnancies at such an early age due to which results in neonatal deaths and ill-health of both the mother and her child.
  • The learned counsel for the petitioner also emphasized that in the 84th report of the Law Commission of India stated that law related to rape concerning girl child below 18 years has many anomalies.[3] In 172nd report of law commission, they stated that an exception should be added to the Exception of Section 375 of IPC to increase the age of 15 years to 16 years for sexual intercourse with her husband shall not be considered as sexual assault if she is above 16 years of age. But the recommendation of the LCI was not approved by the Honorable Supreme Court.[4]

Arguments from respondent's side
  • The justifications were given by UOI against the arguments of the learned counsel for petitioner was “ UOI stated that educational and economic development of our country in detrimental and is not improving. So, they decided to retain the age of 15 years as mentioned in Exception 2 to Section 375 of IPC so as to protect the rights of husband and wife in criminalizing sexual activities between them.
     
  • According to 3rd report of National Health Survey, 46% of women who are between the age group of 18-29 years is below the age of 18 years. It is also estimated that there are 23 million child brides in India. So it will be totally inappropriate and impractical to criminalize the consummation of marriage linking with the serious and heinous offense as rape.
     
  • While considering the socio-economic conditions of India, providing punishment for child marriage would be considered inappropriate as prescribed under Exception 2 to Section 375 of IPC so as to retain the age of 15 years as it is being practiced for many years as basic facts and social norms as well as traditional practice.
     
  • In 172nd report of Law Commission of India, it was suggested by LCI that the age 15 years should be increased to 16 years but after detailed consultations with various stakeholders it was decided to retain the age of 15 years.
     
  • If the marriage is constituted at the age of 15 years then it should not be the reason to hold the husband guilty of rape merely it was a traditional practice.
     
  • By considering the social and old traditions and norms, it is the duty that the provisions of the law should be made according to the norms which did not affect the particular class or society, so 15 years should be retained in Exception 2 to Section 375 of IPC.
     
  • Besides the above-made justifications made by UOI, also asserted the provisions of PCMA act, 2006 (Prohibition of Child Marriage Act, 2006) states most important legislation a male below 21 years of age and a female below 18 years of age shall constitute their marriage as voidable at the instance of the person whose rights have been violated. [5]
     
  • By referring to the Juvenile Justice (Care and Protection of Children) Act, 2015, it was stated that the Constitution provides for the remedy for the children who have not attained the age of 18 years and are at imminent risk of danger.[6]
     
Issue 2: Whether Exception 2 to Section 375 of IPC is arbitrary?
  • Before answering whether Exception 2 to Section 375 of IPC is arbitrary or not, it is necessary to know that whether a law or a rule or an act can be struck down merely because that act or rule is arbitrary in nature. In the case of Indira Gandhi v. Raj Narain, the court decided to strike down the clauses (4) and (5) in Article 329-A of the constitution due to arbitrariness of it. These clauses were arbitrary in nature as it destroyed and damaged the true meaning of rule of law as defined by A.V Dicey.[7
     
  • When an act is arbitrary in nature it is obvious that it violates our constitution. Therefore, it is obvious to ascertain that when an Article of the Constitution is violated then it is arbitrary in nature and it is can be stuck down or declare it is unconstitutional.
     
  • The arguments stated by UOI were whimsical and capricious in nature. Merely because something is going on for a long time as a traditional practice doesn't make it obvious that it will be according to norms of the present society and will therefore be considered as illegal and a criminal offense. So it is completely illogical to consider that the girl who is married has given consent to any sexual activity.
     
  • The law needs to evolve and change when society needs it. When the age of a girl is fixed at 18 years in every other law then why only in Exception 2 to Section 375 of IPC it is 15 years for a married one. So, it is unfair and unjust to the rights of the girl child hence it is declared arbitrary in nature.

Issue 3: Whether Exception 2 to Section 375 of IPC is discriminatory
  • It is obvious that if any rule or act is discriminatory in nature than that particular law or rule is violating our constitution and therefore it should be struck down or declared unconstitutional.
     
  • The Exception 2 to Section 375 of IPC discriminates between the girl child who is below 18 years of age and had sexual intercourse with or without her consent with a man and the girl who has been married at the age of 15 years and had sexual intercourse with her husband without her consent, merely because she is married the husband will get immunity from the charges of rape.
     
  • Considering Exception 2 to Section 375 of IPC, the husband has got immunity from the charges of rape but in other provisions of law, the husband will be held liable for other offenses, such as if a husband beats a girl child and have sexual intercourse with her then he will be liable under Sections 323, 324, and 325 of IPC, but he cannot be held guilty under the offense of rape. This is the anomaly as the husband here will be guilty of lesser offenses.[8]
     
  • Therefore, this exception not only is arbitrary in nature but also discriminatory to the rights of a girl child.

Issue 4: Is the court creating a new offense?
One of the doubts raised during the pronouncement of judgment is whether by striking down particular law or rule partially or fully, is the court creating a new offense. It does not mean that the court cannot make a new offense, but by partially striking down Section 375 of IPC, there is no doubt that the court is creating a new offense. It was held that Exception 2 to Section 375 of IPC be read down as it is unconstitutional and offensive. The question of creating a new offense is cleared by the fact that there is already an offense existed in Section 375 of IPC and in Sections 3 and 5 of POCSO act. Therefore, the court read down Exception 2 to Section 375 of IPC and not created any new offense.

Rules which are applicable fro the case
  • Section 375 of IPC defines that a man who had sexual intercourse with a woman without her consent or willingness to do and if all the seven essentials are matched which are mentioned under Section 375 as clauses, then the person is said to have commit rape. The ˜sixthly' clause under Section 375 clears out that if a man had sexual intercourse with a girl who is below 18 years of age with or without her consent or willingness, then that man has been said to commit rape. This generally refers to ˜statutory rape' where it doesn't matter whether the man who had done rape with a girl who is below 18 years of age is with or without her consent or willingness, such thing becomes irrelevant.
     
  • Exception 2 to Section 375 of IPC states that a man will not be guilty of rape if he had sexual intercourse with his wife who is above 15 years of age with or without her consent. However, sexual intercourse with a girl who is below 15 years of age whether she is married or not and with or without her consent or willingness is considered as rape as stated under Section 375 of IPC. Therefore, regardless of willingness or consent of girl child above 15 years of age who is married, the husband will get immunity from the charges of rape and will not be guilty of rape merely she is married.
     
  • The court also considered The Protection of Human Rights Act, 1993, where human rights are defined under Section 2 (1) (d) which states the right to liberty, freedom, life, equality, the dignity of the individual as guaranteed by the constitution. It is of no doubt that if a girl child is forced for sexual intercourse with his husband then it will obviously be considered a violation of the rights of the girl child, it would amount to a violation of the right to dignity, right to liberty, and the right to equality.[9]
  •  In reference to The Protection of Women from Domestic Violence Act, 2005, as under Section if the husband of the girl child causes harm to the well-being, or if it endangers to life and security of the girl child whether mentally or physically or if he does sexual abuse to the girl child, then the husband shall be guilty under the act for sexual abuse or for any conduct which degrades or lower the dignity of the girl child.
     
  • In reference to The Prohibition of Child Marriage Act, 2006, provides for the definition of the child, who is a male if he is above 21 years of age and is a female if she is above 18 years of age. Child marriage is defined as the marriage in which one of the contracting parties is a child as defined. Under Section 3 of the PCMA act, child marriage can be constituted as voidable at the instance of the party who is a child and is not above the age prescribed under the PCMA act.

    Therefore, Parliament has provided child marriage as an offense if one of the contracting parties is a child and under Section 9 of PCMA act if a male marries a girl who is not above 18 years of age tan he will have to face rigorous punishment of 2 years or fine or both, therefore it is not the matter of fact that a male is a child or not but if he marries a girl child then he will have to face consequences.

    If a person performs, directs, abets, or conducts any child marriage then that person would be held guilty under Section 10 of the PCMA act. Section 11 of the PCMA act prohibits a person to promote or permit to solemnize a child marriage. Section 13 of the PCMA act states that the court has the power or any jurisdictional judicial officer has the power to impart injunction on the solemnization of child marriage.

    Finally, Section 14 of PCMA act states that if any marriage constitutes after the injunction on it then that marriage would be considered as void by the court. In the state of Karnataka, an amendment was made where it was held that any marriage in which one of the contracting parties is minor then marriage would be considered as void ab initio.[10]
     
  • the court has also referred to The Protection of Children from Sexual Offences Act, 2012, states that the best interest of the child should be secured. It is the obligation on the part of the Government of India to secure the best interest of children as provided under the Convention on the Rights of the Child. Under Section 3 of POCSO act, it has been defined that if a person commits penetrative sexual assault with a girl child then he is actually committing the offense of aggravated penetrative sexual assault with the girl child who is in relation is his wife.

    Under Section 5 of the POCSO Act, the aggravated penetrative sexual assault is defined, but it has the same constituents as rape under Section 375 of IPC will also constitute a similar type of rigorous punishment but the only the difference would be that the girl should not be married under the case of IPC and the form of the trial will change. The court stated that it is immaterial that a person is guilty of rape under IPC or under the POCSO act, at the last, they need to suffer similar type punishment, so it will hardly make it any different.

    Under Section 42-A of the POCSO act, it is stated that if any other law is in derogation of the POCSO act than the provisions of POCSO Act will override that law as POCSO act is a special act as it is applicable to a particular subject that is the protection of rights of children for sexual offenses.[11]
     
  • Under the Juvenile Justice (Care and Protection of Children) Act, 2015, it is stated that the definition of child is a person who is not above the age of 18 years. The JJ act is also relatable to Article 15(3) of the constitution which states that the parliament should introduce special provisions for the benefit of children and women. The JJ act protects those children who are at imminent risk or in danger before attaining the age of marriage.
     
  • the court has also referred to the fundamental rights of the constitution which are Article 21, 14, and 15. Article 21 of the constitution states that it is the duty of the state to maintain bodily integrity of girl child as she has right to live with dignity, due to this exception the girl child loses confidence in herself and has to face adverse effects of child marriage which includes the absence of emotional, physical, or mental stability, it will have detrimental effects on the girl child which will not only include physical or mental well-being but also, nutrition, education, employability, and her general well-being will also have adverse effects. An exception to clearly violates Article 21 as it shows that the husband has full bodily control over his wife and can sexual intercourse where consent of girl child is immaterial The girl child has bodily integrity and right of reproductive choices. It is very possible that being subjected to sexual intercourse will result in unwanted pregnancies which will curtail reproductive choices of the girl child and will affect her health as well as the of the child. It will eventually lead to neonatal deaths, malnourishment and ill-effects to the girl child.
By applying the rules stated under Article 14 of the constitution, the girl child has equal rights to man when it comes to consenting and no other party will have any authority or power over the other party.
Article 15 is relatable to the POCSO act as Article 15(3) states that the parliament can make special provisions for the betterment of the children and women.

Analysis/Application
As it is established under Exception 2 to Section 375 of IPC that a person who had sexual intercourse with his wife, the wife not being below 15 years of age, will not be held guilty of rape whether there was consent or not, and therefore the husband will have immunity from the charges of rape. But when the petitioner came up with the petition, it was stated that the girl child will not have the right to bodily integrity but his husband will have full control over the body of his wife. This was considered as whimsical and capricious as it was violating the rights of the girl child under Articles 14, 15, and 21 of the constitution. The exception was held arbitrary and discriminatory in nature as well as it was violating the rights of the girl child. So it is obvious that if any rule or any acct is violating any part of the constitution then that rule would be struck down or would declare as unconstitutional.

By applying the POCSO act it has been defined that a child is a person who is below 18 years of age. Under Section 3 of the POCSO Act, when a person does any sexual activity which degrades the dignity of the girl child than that person would be liable for penetrative sexual assault, but when a person is doing any sexual activity or sexual intercourse with a girl child who is below 18 years and is a wife of that person then that person would be liable for aggravated penetrative sexual assault under Section 5 of the POCSO act.

As mentioned in the POCSO act under Section 5, the offense of aggravated sexual assault is similar to the rape definition under Section 375 of IPC. Here both the offenses have same constituents and similar type of punishment but the only difference is in the procedure of trial. The court presented its argument by referring to POCSO act that there will not be any material difference if a person is booked under IPC or POCSO act.

But after analyzing different provisions, the court decided that since the POCSO act is a special law for the benefit of children and under IPC there are many provisions mentioned and Exception 2 to Section 375 of IPC is one of the provisions mentioned in the IPC. So, it was held that POCSO Act will prevail over any other law that is IPC. So, keeping in mind the POCSO Act, the age described under Exception 2 to Section 375 of IPC was discriminatory and arbitrary in nature as it was 15 years old and under Section 5 of the POCSO act it is 18 years old. So, the court finally upheld the case and decided to read down Exception 2 to Section 375 of IPC.

While going through the case proceedings, the court came up with 5 options to deal with one of them:
  1. To let the discrepancy remains as it is as it does not seem a feasible option, as it will have adverse effects on thousands of girl children.
     
  2. To strike down the Exception 2 to Section 375 of IPC as unconstitutional, but this the option will also not be feasible as no such Issue was raised during the proceedings of the case.
     
  3. To reduce the age of girl child for consenting to sexual intercourse from 18 years to 15 years of age, but this will not work as reducing the age is changing some provisions under IPC and that power is with the parliament and not with the court.
     
  4. This is also not a feasible option to bring the POCSO act in compliance with Exception 2 to Section 375 of IPC as it would entail a not only amendment to POCSO act but also to make other pro-child statutes.
     
  5. Last the option left with the court was to read down Exception 2 to Section 375 of IPC as it will be in compliance with the POCSO act and other pro-child statutes. This was the most holistic option available.
It is only through this judgment that the rights of many girl children can be preserved in a harmonious way by imparting social justice to them.

As Justice Madan B. Lokur stated that whether defined as a street child, or a surrendered child, or an abandoned child, or an adopted child, a child remains a child. Similarly, whether it is a married child, or an unmarried child, or a divorced child, or a separated child, or a widowed child, a child remains a child.

So, it will be very unjust and unfair that a provision is different from other laws merely a girl child is married and above 15 years.
Justice Deepak Gupta ruled out that Exception 2 to Section 375 of IPC is violative of fundamental rights of our constitution whose protection is the duty of the court to maintain and provide justice to its citizens by striking down the rule or making some changes according to it:
  • Article 14 of the constitution: the unequal nature of the exception that distinguishes between treating girls and providing them the justice of the same age on the basis of their marital status.[12]
  • Article 15 is violated because of the reason that is a pessimistic statute adversely impacting the life of a person and not being corrected due to lack of state funds.[13]
  • Article 21 is violated as this exception devastates the life of a person living with dignity and have a choice of bodily integrity over her body, it also includes right to grow mentally and physically as a self-governing adult female who is above 18 years of age.[14]
Therefore, the pronouncement of judgment elucidates our Honorable Supreme Court as supreme law of land and puts man and woman on an equal footing without keeping any party on the path of discrimination and it was reiterated that if any statute violates our constitution or disparage or denigrates any of the provisions of law than that legislative provision must be declared as unconstitutional or should be struck down or should be read down as in this case, the court did.

Conclusion
Through this petition, the Independent Thought took a huge step by recognizing the rights of the girl child by pronouncing this historic and landmark judgment which gave the girl child to live in a better, free and safe environment. The court finally read down Exception 2 to Section 375 of IPC gave immunity to the husband from the charges of rape and do sexual intercourse with her wife with or without her consent being that the wife is above 15 years of age, but the court read down this exception and now it will illegal if a husband has sexual intercourse with her wife who is above 15 years of age. By reading down this judgment, the court secured many girl children live and placed women at equal footing to men.

End-Notes:
  1. Indian Penal Code, 1860, s 375
  2. The Constitution of India, 1950, art 15(3)
  3. Law Commission, Rape and allied offenses some questions of Substantive law, Procedure and Evidence (Law Com No 84, 1980) para 2.18, 2.19, and 2.20.
  4. Law Commission, Review of Rape laws (Law Com No 172, 2000)
  5. Prohibition of Child Marriage Act, 2006
  6. Juvenile Justice (Care and Protection of Children) Act, 2015
  7. AIR 1975 SC 2299
  8. Indian Penal Code, 1860
  9. The Protection of Human Rights Act, 1993, s 2(1)(d)
  10. Protection of Child Marriage Act, 2006
  11. Protection of Children from Sexual Offences Act, 2012
  12. Constitution of India, 1950, art 14
  13. Constitution of India, 1950, art 15
  14. Constitution of India, 1950, art 21

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