A very important question was before the court in this case, whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape? Exception 2 to Section 375 of the Indian Penal Code, 1860 (the IPC) answers this in the negative, But the court decided that sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not.
According to the court, the exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear. The artificial distinction is contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in international conventions. It is also contrary to the philosophy behind some statutes, the bodily integrity of the girl child and her reproductive choice.
The Petitioner in the case
The petitioner is a society and has since been working in the area of child rights. It was also involved in legal intervention, research and training on issues concerning children and their rights. The society 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 girls who are married between the ages of 15 and 18 years.
According to the petitioner, Section 375 of the IPC prescribes the age of consent for sexual intercourse as 18 years meaning thereby that any person having sexual intercourse with a girl child below 18 years of age would be statutorily guilty of rape even if the sexual activity was with her consent. Almost every statute in India recognizes that a girl below 18 years of age is a child and it is for this reason that the law penalizes sexual intercourse with a girl who is below 18 years of age.
Unfortunately, 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, only because she is married to him and for no other reason. The right of such a girl child to bodily integrity and to decline to have sexual intercourse with her husband has been statutorily taken away and non-consensual sexual intercourse with her husband is not an offence under the IPC.
Counsel for the petitioner submitted that absolutely nothing is achieved by entitling the husband of a girl child between 15 and 18 years of age to have non-consensual sexual intercourse with her. Moreover, merely because a girl child between 15 and 18 years of age is married does not result in her ceasing to be a child or being mentally or physically capable of having sexual intercourse or indulging in any other sexual activity and conjugal relations.
It was submitted that to this extent Exception 2 to Section 375 of the IPC is not only arbitrary but is also discriminatory and contrary to the beneficial intent of Article 15(3) of the Constitution which enables Parliament to make special provision for women and children.
Section 375 of the IPC defines rape. This section was inserted in the IPC in its present form by an amendment carried out on 3 rd February, 2013 and it provides that a man is said to commit rape if, broadly speaking, he has sexual intercourse with a woman under circumstances falling under any of the seven descriptions mentioned in the section. (A woman is defined under Section 10 of the IPC as a female human being of any age).
Among the seven descriptions is sexual intercourse against the will or without the consent of the woman; clause Sixthly of Section 375 makes it clear that if the woman is under 18 years of age, then sexual intercourse with her – with or without her consent – is rape. This is commonly referred to as statutory rape in which the willingness or consent of a woman below the age of 18 years for having sexual intercourse is rendered irrelevant and inconsequential.
However, Exception 2 to Section 375 of the IPC provides that it is not rape if a man has sexual intercourse with a girl above 15 years of age and if that girl is his wife.
However, sexual intercourse with a girl under 15 years of age is rape, whether it is with or without her consent, against her will or not, whether it is by her husband or anybody else. This is clear from a reading of Section 375 of the IPC including Exception 2.
Therefore, Section 375 of the IPC provides for three circumstances relating to rape.
Firstly, sexual intercourse with a girl below 18 years of age is rape (statutory rape).
Secondly and by way of an exception, if a woman is between 15 and 18 years of age then sexual intercourse with her is not rape if the person having sexual intercourse with her is her husband. Her willingness or consent is irrelevant under this circumstance.
Thirdly sexual intercourse with a woman above 18 years of age is rape if it is under any of the seven descriptions given in Section 375 of the IPC (non-consensual sexual intercourse).
The result of the above three situations is that the husband of a girl child between 15 and 18 years of age has blanket liberty and freedom to have non-consensual sexual intercourse with his wife and he would not be punishable for rape under the IPC since such non-consensual sexual intercourse is not rape for the purposes of Section 375 of the IPC.
The court made it clear that they were not considering the question of marital rape, and, present case was just limited to the question of sexual intercourse to a wife between 15 and 18 years old.
The court said that a married girl between 15 and 18 years of age could be a victim of aggravated penetrative sexual assault under the POCSO Act, but she cannot be a victim of rape under the IPC if the rapist is her husband since the IPC does not recognize such penetrative sexual assault as rape. Therefore, such a girl child has no recourse to law under the provisions of the IPC notwithstanding that the marital rape could degrade and humiliate her, destroy her entire psychology pushing her into a deep emotional crisis and dwarf and destroy her whole personality and degrade her very soul. However, such a victim could prosecute the rapist under the POCSO Act. The court did not find any rationale for such an artificial distinction.
The court referred the view expressed by the Committee on Amendments to Criminal Law chaired by Justice J.S. Verma (Retired). In paragraphs 72, 73 and 74 of the Report it was stated that the out-dated notion that a wife is no more than a subservient chattel of her husband has since been given up in the United Kingdom. Reference was also made to a decision of the European Commission of Human Rights which endorsed the conclusion that a rapist remains a rapist regardless of his relationship with the victim. The relevant paragraphs of the Report read as follows:
“72. The exemption for marital rape stems from a long out-dated notion of marriage which regarded wives as no more than the property of their husbands. According to the common law of coverture, a wife was deemed to have consented at the time of the marriage to have intercourse with her husband at his whim. Moreover, this consent could not be revoked. As far back as 1736, Sir Matthew Hale declared: The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract.
73. This immunity has now been withdrawn in most major jurisdictions. In England and Wales, the House of Lords held in 1991 that the status of married women had changed beyond all recognition since Hale set out his proposition. Most importantly, Lord Keith, speaking for the Court, declared,
Marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband.”
IPC and POSCO Act
The court noted that there is an apparent conflict or incongruity between the provisions of the IPC and the POCSO Act. The rape of a married girl child (a girl child between 15 and 18 years of age) is not rape under the IPC and therefore not an offence in view of Exception 2 to Section 375 thereof but it is an offence of aggravated penetrative sexual assault under Section 5(n) of the POCSO Act and punishable under Section 6 of that Act. This conflict or incongruity needed to be resolve in the best interest of the girl child and the provisions of various complementary statutes needed to be harmonize and read purposively to present an articulate whole.
Some important observations made by the court
The court made some important observations before discussing the matter further-
Firstly, a child is and remains a child regardless of the description or nomenclature given to the child. It is universally accepted in almost all relevant statutes in our country that a child is a person below 18 years of age. Therefore, a child remains a child whether she is described as a street child or a surrendered child or an abandoned child or an adopted child. Similarly, a child remains a child whether she is a married child or an unmarried child or a divorced child or a separated child or a widowed child.
Secondly, the age of consent for sexual intercourse is definitively 18 years and there is no dispute about this. Therefore, under no circumstance can a child below 18 years of age give consent, express or implied, for sexual intercourse.
Thirdly, Exception 2 to Section 375 of the IPC creates an artificial distinction between a married girl child and an unmarried girl child with no real rationale and thereby does away with consent for sexual intercourse by a husband with his wife who is a girl child between 15 and 18 years of age. Such an unnecessary and artificial distinction if accepted can again be introduced for other occasions for divorced children or separated children or widowed children.
The court further said that merely because child marriages have been performed in different parts of the country as a part of a tradition or custom does not necessarily mean that the tradition is an acceptable one nor should it be sanctified as such. Times change and what was acceptable the few decades ago may not necessarily be acceptable today.
An early marriage and sexual intercourse at an early age could have detrimental effects on the girl child not only in terms of her physical and mental health but also in terms of her nutrition, her education, her employability and her general well-being. To make matters worse, the detrimental impact could pass on to the children of the girl child who may be malnourished and may be required to live in an impoverished state due to a variety of factors.
An early marriage therefore could have an inter-generational adverse impact. In effect therefore the practice of early marriage or child marriage even if sanctified by tradition and custom may yet be an undesirable practice today with increasing awareness and knowledge of its detrimental effects and the detrimental effects of an early pregnancy.
The court referred Article 21 of the constitution and said that Article 21 of the Constitution gives a fundamental right to a girl child to live a life of dignity. The right of a girl child to maintain her bodily integrity is effectively destroyed by a traditional practice sanctified by the IPC. Her husband, for the purposes of Section 375 of the IPC, effectively has full control over her body and can subject her to sexual intercourse without her consent or without her willingness since such an activity would not be rape.
Anomalously, although her husband can rape her but he cannot molest her for if he does so he could be punished under the provisions of the IPC. This was recognized by the Law Commission of India, in its 172 nd report but was not commented upon. It appeared therefore that different and irrational standards had been laid down for the treatment of the girl child by her husband and it was necessary to harmonize the provisions of various statutes and also harmonize different provisions of the IPC inter-se.
The court made it clear that apart from constitutional and statutory provisions, constitutional morality forbids the court from giving an interpretation to Exception 2 to Section 375 of the IPC that sanctifies a tradition or custom that is no longer sustainable.
On a complete assessment of the law and the documentary material, it appeared before the court that there were five options before us:
(i) To let the incongruity remain as it is this does not seem a viable option to us, given that the lives of thousands of young girls are at stake;
(ii) To strike down as unconstitutional Exception 2 to Section 375 of the IPC in the present case this is also not a viable option since this relief was given up and no such issue was raised;
(iii) To reduce the age of consent from 18 years to 15 years this too is not a viable option and would ultimately be for Parliament to decide;
(iv) To bring the POCSO Act in consonance with Exception 2 to Section 375 of the IPC this is also not a viable option since it would require not only a retrograde amendment to the POCSO Act but also to several other pro-child statutes;
(v) To read Exception 2 to Section 375 of the IPC in a purposive manner to make it in consonance with the POCSO Act, the spirit of other pro-child legislations and the human rights of a married girl child.
There was two judges bench and both written separate judgments.
Justice madan lokur
Justice madan lokur was in favour of purposive and harmonious construction, and decided that,
“Exception 2 to Section 375 of the IPC to now 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. It is only through this reading that the intent of social justice to the married girl child and the constitutional vision of the framers of our Constitution can be preserved and protected and perhaps given impetus.”
Justice D Gupta
Justice D gupta also delivered almost same decision but he also struck down the exception 2 of section 375, and concluded that,
“I am clearly of the opinion that Exception 2 to Section 375 IPC in so far as it relates to a girl child below 18 years is liable to be struck down on the following grounds:
(i) it is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Article 14, 15 and 21 of the Constitution of India; (ii) it is discriminatory and violative of Article 14 of the Constitution of India and;
(iii) it is inconsistent with the provisions of POCSO, which must prevail.
Therefore, Exception 2 to Section 375 IPC is read down as follows:
Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape. It is, however, made clear that this judgment will have prospective effect.
Independent Thought v. Union of India, (2017)