Author:Parnika Choudhary, 3rd year student at Bharati Vidyapeeth University.
Citation: (2017) 10 SCC 800
Date of decision: October 11, 2017
Bench: Deepak Gupta, M. B. Lokur
Original copy: View
Statues involved: Indian Penal Code, 1860, The Protection of Children from Sexual Offences Act, 2012
Issues in question:
- Whether exception 2 of Section 375 of the IPC is valid and constitutional?
- Whether Exemption 2 to Section 375 IPC violates Article 21 by allowing married females to consent at a younger age?
Background of the case:
- Independent Thought v. Union of India involved a registered organisation committed to the welfare of children, with the Indian union and the National Commission for Women as respondents.
- In 2013, the Criminal Law Amendment Act, passed under Section 375 of the Indian Penal Code, altered the age of consent to sexual intercourse from 16 to 18. There seemed to be, however, an exemption to this Section, namely, Exception 2, which permits a husband to have non-consensual sexual contact with a female child (i.e., under the age of 18) if she is over the age of 15.
- The POCSO Act was passed in 2012, establishing an 18-year-old minimum age for consenting sex. Exception 2 ran counter to Section 3 of the POCSO Act, which makes penetrative sexual assault illegal.
- Independent Thought, a non-profit organisation, filed a writ petition with the Supreme Court under Article 32 on June 11, 2013, asking the court to declare the exemption unconstitutional. The Child Rights Foundation, a quasi-government organisation devoted to eliminating child marriage, was extensively heard as an Arbitrator.
- The same day, the Judicial Branch requested updated information on the health and consequences of girls married between the ages of 15 and 18, and the number of Child Marriage Prohibition Officers appointed under the 2006 Child Marriage Prohibition Act. As an outcome, on August 28, 2017, the Child Rights Trust, a non-governmental organisation devoted to ensuring that Every Child Has a Right, issued a press release.
- According to Independent Thought and the Child Rights Trust, categorising young females as married or unmarried while prosecuting sexual assault has no rational relationship to the Section’s aims. It also goes against the state’s obligations to protect children’s rights under Article 21 and international treaties.
- The United Progressive Alliance (UPA) administration’s Home Ministry filed a counter-affidavit in support of Exception 2 in February 2014, which the National Democratic Alliance government finally approved.
- The Division Bench made the following remarks while examining whether a husband commits rape if he has sexual intercourse with his wife who is between the ages of 15 and 18:
- The IPC’s Exemption 2 creates an artificial difference between a wedded girl child and an unmarried girl child who has no reasonable relationship. Both Article 15(3) and 21 of the Indian constitution forbid such a distinction. Under any aspect of the IPC, the man is not exempt from punishment.
- The parliament has raised the marriage and consent ages on several occasions. A girl child under the age of eighteen is now prohibited from marrying or giving consent. By keeping the minimum age of sexual consent for a wife at 15 years when all other laws raise it, Exception 2 becomes illogical, unjust, and unfair, and infringes the rights of the female child. As a result, it is decided arbitrarily.
- The Court is only concerned with the marital rape of a child below the limit of 18 years, not with the rape of a female over the limit of 18 years. As a result, the ruling should not be applied in any way to the issue of an adult girl’s “marital rape.”
- On October 12, 2017, a two-judge bench read down Exception 2 to Section 375 IPC and raised the age of sexual consent to 18 for the Exception in two concurring judgments. It also advocated for legislative measures to prevent and remedy breaches of girls’ rights resulting from underage marriage.
- A major section of the judgement in Independent Thought is devoted to early marriage and its effects. The exclusion for young females, according to the Supreme Court, is aimed to rationalise the practice of child marriage by indicating that intercourse with the minor bride is inescapable. Another common argument against criminalising marital rape is that it would “destroy the institution of marriage.” The respondents made this argument verbally in Independent Thought, the Union of India, citing the Rajya Sabha’s Parliamentary Standing Committee 167th Report.
- In the aforementioned decision, the Supreme Court raised the age of consent for sexual intercourse inside marriages from 16 to 18. Before the ruling, sexual acts committed by a husband on his wife beyond the age of 15 were not deemed assault in the eyes of law. This created a legal conundrum because the age of sexual consent under the IPC and several specialised juvenile legislation, including POCSO, is 18 years.
- The Independent Thought case has made a big step toward protecting female children by criminalising sexual intercourse with a wife under the age of 18.
- The Judicial Branch made no specific safeguards for situations wherein the interests of other minors are also at stake. It didn’t account for cases when the girl’s spouse is also a minor and would be just as innocent if they had consensual intercourse.