Independent Thought v. Union of India and Another- case study

Independent Thought v. Union of India and Another- case study
Sec 376 exp-2 iindian penal code

1. Independent Thought
v.
Union of India and Another

2. Why this case is important?
This decision provides groundbreaking recognition that child marriage is linked to a
continuum of sexual and reproductive health harm, in violation of the government’s
obligation to ensure girls’ rights to reproductive choice and bodily integrity. The judges
specifically sought evidence relating to the health risks of rape within child marriage, and
repeatedly cited studies establishing that child marriage triggers serious reproductive rights
and other human rights violations, including exposing girls to an increased risk of coerced
sex; early, frequent, and unintended pregnancy; maternal mortality and morbidity; and
sexually transmissible infections.6 The Court expressed concern that the girls most at risk of
child marriage were also those who lacked the information, education, and means to exercise
decision-making authority over their number of pregnancies and access to nutrition or health
care.
The Supreme Court judgment states that given these health risks, denying girls the ability to
refuse sex within marriage violates their fundamental right to reproductive choice. It goes on
to affirm that this right must be enforced “all the more”7 in the case of married girls, who
face risks to their lives from early pregnancies resulting from forced sex.

3. Legal Context
Though child marriages are legally prohibited, husbands of girls between 15-18 years old
were previously exempt from criminal prosecution for rape under Exception 2 of Section 375
of the Indian Penal Code. The Prohibition of Child Marriage Act (PCMA) establishes 18 as
the minimum legal age of marriage for girls, and recognizes such marriages as voidable on
the request of a child married under the legal age.3 The exception in the Indian Penal Code
allowed child marriage to legitimize what would otherwise be considered rape, and created
impunity for sexual violence faced by married girls under 15 years old. Exception 2 was also
inconsistent with a recent Indian Penal Code amendment, which raised the age of sexual
consent to 18, and with legal protections for children established under the Juvenile Justice
Act and the Protection of Children from Sexual Offences Act.
Facts
The petitioner is a society registered on 6th August, 2009 and has since been working in the
area of child rights. The society provides technical and hand-holding support to non-
governmental organizations as also to government and multilateral bodies in several States in
India. It has also been involved in legal intervention, research and training on issues
concerning children and their rights. The society has 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.

4. Issue
 Whether Exception 2 to Sec 375 of the Indian Penal Code, in so far as it relates to
girls aged 15 to 18 years, is liable to be struck down as violative of Art 14, 15 and 21
of the Constitution?

Arguments
 Arguments in favour of the Petitioner
The arguments advanced in favour of the petitioners are as follows;
1. Exception 2 to Sec 375 of IPC is arbitrary, discriminatory and contrary to the
beneficial intent of Art 15(3).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. 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.
2. The provision has placed the girl child at great disadvantage, contrary to the visionary
and beneficent philosophy propounded by Art 15(3) of the Constitution.
3. A forceful sexual intercourse with a wife between the age of 15 to 18 is also violative
of human rights as defined under Sec 2(d) of The Protection of Human Rights Act,
1993 and Sec 3 of The Protection of Women from Domestic Violence Act, 2005.
4. The provision results in a situation in which 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.
5. Law Commission of India in its 84
th
report stated that since the Child Marriage
Restraint Act, 1929 prohibits the marriage of a girl below 18 years of age, sexual
intercourse with a girl of that age should also be prohibited and IPC should reflect that
position.
6. Child marriage also leads to violence, neglect, abandonment, low education, under
nutrition, higher maternity mortality and infant mortality rates etc.

5.  Arguments in favour of the Respondents
The arguments advanced in favour of the respondents are as follows:.
1. Child marriages are still prevalent in India and it is only voidable not void under The
Prevention of the Child Marriage Act. So it is essential to retain the age of 15 under
exception 2 of Sec 375 of IPC so as to give protection to the husband and wife against
criminalizing the sexual activity between them.
2. National Family Health Survey-III says that 46% of women between 18-29 years in
India were married before the age of 18 and hence criminalizing the consummation of
such marriage not be appropriate.
3. Providing punishment for child marriage with consent does not appear to be
appropriate in view of socio-economic conditions of the country.
4. Exception 2 of Section 375 of IPC envisages that if the marriage is solemnized at the
age of 15 years due to traditions, it should not be a reason to book the husband in the
case of offence of rape under the IPC.
5. The provisions of law should be in such a manner that it cannot affect a particular
class of society and Exception 2 of Sec 375 has been provided considering the social
realities of the nation.
6. By virtue of getting married the girl child has consented to sexual intercourse with her
husband expressly or by necessary implication.
7. Child marriages have been traditionally performed in different parts of the country
and such traditions must be respected.
8. 167
th
report of the Parliamentary Standing Committee of the Rajya Sabha (presented
in March 2013) records that several members felt that marital rape has the potential of
destroying the institution of marriage.

Judgement
The judges while giving the judgment has considered the following points;
 The National Charter for Children, 2003 recognized that child marriage is a crime and
an atrocity committed against the girl child. Following the charter the National Policy
for Children was notified on 2013 and it states that every person below the age of 18
years is a child. And that every child has universal, inalienable and indivisible rights

6. including the right to life, survival, development, education, protection and
participation.
 The Protection of Children from Sexual Offences Act, 2012 states that law should
operate in a manner that the best interest and well being of the child be regarded with
paramount importance. And sexual exploitation and sexual abuse of children are
heinous crimes and need to be effectively addressed. Moreover, if the husband of a
girl child commits penetrative sexual assault on his wife, he actually commits
aggravated penetrative sexual assault as defined in Sec. 5(n) of the POSCO Act and is
punishable under Sec 6 by rigorous imprisonment of not less than ten years and may
extend to imprisonment for life and fine.
 The Convention on the Rights of the Child (CRC) under its Art 34 makes all the
member countries bound to undertake all appropriate national, bilateral and multi
lateral measures to prevent the coercion of a child to engage in any unlawful sexual
activity.
 Under the Juvenile Justice ( Care and Protection of Children) Act, 2015 a girl child
below 18 years of age and who is sought to be married is a child in need of care and
protection and therefore required to be produced before a Child Welfare Committee.
 A Women’s right to privacy, dignity, bodily integrity and right to reproductive
choices should be respected. (Suchita Srivastava v. Chandigarh Administration, State
of Maharashtra v. Madhukar Narayan Mardikar, Devika Biswas v. Union Of India)
 Rape is a heinous crime which violates the bodily integrity of a girl child, causes
trauma and destroys her freedom of reproductive choice is a composite issue that
needs serious consideration and deliberation. (State of Karnataka v. Krishnappa,
Bodhisattwa Gautam v. Subhra Chakraborty, State of Punjab v. Gurmit Sigh)
 The most appropriate resolution to the conflict between IPC and POSCO Act been
provided by the State of Karnataka by inserting sub-section(1A) in Sec 3 of PCMA
declaring that every child marriage solemnized henceforth is void ab intio and the
husband of the girl child is punishable under PCMA.

7. On considering these matters in detail the two judges have come with concurring but separate
judgment. It says that Exception 2 to Sec 375 IPC in so far as it relates to a girl child below
18 years is laible to struck down on the following grounds:-
1. It is arbitrary and violative of rights of girl child and not just or reasonable and therefore
violative of Art 14, 15 and 21 of the Constitution of India.
2. It is inconsistent with the provisions of POSCO, which must prevail.
Therefore, Exception 2 to Sec 375 is read down as follows;
“ Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18
years of age, is not rape”
However, it was clearly stated that the judgment will have only 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 in accordance with the provision of Sec 198(6) of
the Code.

Next Steps
Girls will only be able to utilize this judgment when civil society, policymakers, law
enforcement, and judiciary work together to raise awareness that nonconsensual sex within
child marriage is a crime, and address practical and social barriers married girls may face in
filing complaints when rape occurs. Meaningful implementation of the decision’s recognition
of girls’ constitutional rights to bodily integrity and reproductive rights will also require a
holistic review of laws and policies that impact adolescent autonomy to identify areas of
reform

8. Case comment
In India a marriage with a girl below 18 years of age is punishable (only voidable) under the
PCMA. But if the husband of a girl child commits penetrative sexual assault on his wife, he
actually commits aggravated penetrative sexual assault punishable under Sec 6 of the POSCO
Act. However IPC by virtue of Exception 2 to Sec 375 makes sexual intercourse with one’s
wife below 18 years of age, not punishable and an exception to the offence of rape. The two
provisions are contradictory in nature and the same needs to be resolved.
The Harmonious interpretation employed by this Court in this regard is not at all an apt
solution to the problem. Because this new reading of the provision can in no way protect
child brides from the huge emotional and physical turmoil that they face as a result of the
early marriage. A very good option would have been to make child marriages void ab intio (
as provided by the State of Karnataka) and then invalidating Exception 2 to Sec 375 of IPC.
Moreover the justifications like child marriage is a tradition and it is prevalent in many parts
of the country is no good justification to continue such exploitative practices and it’s the need
of the hour to regulate such practices by law.