Author: Vanshika Sachwani, Student of Ramaiah College of Law
In India it is often believed that marriage is a license for a man to have intercourse with his wife, this consent is not required. The petitioner working for child rights files a PIL to bring attention to the violation of rights of girls between the ages of 15 and 18. In India, the legal age for a girl to get married is 18, but Exception 2 of Section 375 of IPC allows a man to have intercourse with his wife irrespective of her age, amounting to rape. Whereas Section 375 of IPC believes that having intercourse with a girl below the age amounts to a person guilty of rape. The petitioner intended to protect the girls from the horrifying consequences of child marriage.
In the judgment, the court held that the exception was violative of section 5 and section 6 of the POSCO Act 2012, which states that if the husband performs a penetrative sexual assault under Section 5 then he shall be punishable under Section 6 of the Act and will face rigorous imprisonment of not less than 10 years and may extend to life and fine.
The court observed that the provision is arbitrary and volatile of Sections 14,15 and 21 of the Indian constitution and violates child rights. The contraventions of the POSCO Act will prevail over other provisions. The Court held that “Sexual intercourse or sexual acts by a man with his wife, the wife not being under 18 years of age, is not rape”.
Essential Details of the Case
Court – Supreme Court of India
Petitioner – Independent Thought
Respondent – Union of India
Bench – Justice Madan B. Lokur and Justice Deepak Gupta.
Year – 2017
Current Status -Not Overruled
Citation –  10 SCC 800, AIR 2017 SC 4904
Date of Judgement – Decided on October 11th, 2017
Laws Involved- Article 14, Article 15, and Article 21 of the Constitution
Case No.-Writ Petition (civil) no. 382 of 2013
Facts of the Case
The petitioner is an organization registered on 6th August 2009 working towards child rights, the NGO is involved in the legal intervention, research, and training education on child issues and rights. The PIL was filed under Article 32 of the Indian Constitution challenging the constitutionality of Exception 2 under Section 375 of IPC as it is discriminatory towards girls between the age group of 15- 18, by denying them their bodily rights.
Petitioner wants to draw attention to the fact that the legal age to give consent for sexual intercourse is 18 years according to Section 375 which means that any person having intercourse with a girl below the age of 18 years will be statutory guilty of rape. Statutes in India consider a girl below the age of 18 years as a child, however Exception 2 of IPC Section 375 allows a man to have non-consensual sexual intercourse with a girl without being charged with rape, only because he is married to her. According to the petitioner, this is the absolute violation of a woman’s bodily rights and personal liberty. It takes away a right of a woman to deny sexual intercourse as non-consensual intercourse between man and wife irrespective of the wife’s age is not an offense.
Whether Exception 2 of Section 375 of IPC is, in so far as it relates to girls aged 15 to 18 years, liable to be struck down as violative of Article 14, Article 15, and Article 21 of the Constitution.
Arguments Advanced by Petitioner
Exception 2 of IPC Section 375 is arbitrary and contrary to Article 15(3) of the Indian Constitution. Giving a man title of husband gives a man a right to have non-consensual sex with a girl child between the age group 15-18 years can not be justified. The marital status of the girl child between 15 and 18 years of age has no rational nexus with the unclear object of this provision. (Exception 2).
The provision is contrary to Article 15(3) of the Indian Constitution which has the beneficial philosophy, of putting the girl child at a lesser advantage in society.
There is a violation of Sec 2 (d) of the Human Rights Protection Act, 1993, and a violation of the Domestic Violation Act, 2005 when a husband has forced sexual intercourse with a girl aged between 15-18 years.
The result of child marriage is violence against the child, especially the girl child, neglect in society and life, low educational standards, low nutritional level, higher maternal mortality rate, and infant mortality rates.
The 84th report mentions that the legislation of the Child Marriage Restraint Act 1929, prohibits the marriage of a girl below the age of 18 years and that should be reflected in all the provisions of IPC.
Arguments Advanced by Respondent
According to the National Family Health Survey, 46% of the women aged between 18-29 in India are married before the age of 18 years, and thus, criminalizing such marriage won’t be appropriate, and might affect the Indian customs and marital life of the woman.
Child marriage is voidable and not void under the legislation The Prevention of the Child Marriage Act, also Child marriages still prevail in India, hence it is necessary to protect the couple from criminalizing the sexual activity between them. This disturbs the usual life structure of society.
Exception 2 of Section 375 of IPC envisages that if the marriage is done due to traditions, it should not be the reason to book the husband in the case of an offense of rape under IPC.
In the 167th report of the parliamentary standing committee, it was recorded that several believed that marital rape has the potential of destroying the institution of marriage.
If sexual intercourse is prohibited between couples aged between 15 – 18 years then there shall be an increase in the child abuse and crime rate in society.
Judgment of the Court
The court believed that the petitioner’s argument of Exception 2 of Section 375 of IPC was violative of Article 14 of the Indian Constitution. It was also observed that Exception 2 was a clear infringement on the right to live a dignified right with essential autonomy and safety, as enshrined in Article 21. The court recognized that the POSCO Act of 2006 and JJ Act, 2000 remember a person below the age of 18 years as a child and prescribes the age of consent for sexual activity as 18 years, however, Exception 2 legalized the non – consensual sex with the wife, moreover The Criminal Amendment, 2013 amended Section 375 of IPC and raised the age of consent to 18 years. The Court, therefore, held Exception 2 to Section 375 to be against the provisions and objectives of POCSO and the social welfare aims of Article 15(3). The right to life included the right to develop physically, mentally, and economically as an independent self-sufficient female adult and considered a range of material discussing the deleterious effect of child marriage and young childbirth. The right to life includes the right to develop physically, mentally, and economically as an independent self-sufficient female adult and is considered a range of material discussing the deleterious effect of child marriage and young childbirth. The court wants to raise the age from 15 to 18 years in Exception to line it with the age of consent and age of marriage in Indian law. However, it was clearly stated that the judgment will have only a prospective effect. It is also clarified that Sec 198(6) of the Code will apply to cases of rape of “wives” below 18 years, and cognizance can be taken only by the provision of Sec 198(6) of the Code.
This was a significant step taken by Independent Thought NGO by condemning the social evil of child marriage and its effects on a girl child. The court tried to remain silent on the concept of ‘marital rape’. These PIL filed are not just for the interest of a girl child. The author believes that there must be strict provisions in the legislation of our country to ensure justice and safeguard of rights of the girl child. The court extended its concern toward the well-being of young women of our country who deserve equal opportunity to progress in a progressive Indian society.