An Analysis of Independent Thought v. Union of India (2017): Exception to Rape within Child Marriages

Introduction

This article is an analysis of Independent Thought v. Union of India (2017) case which discusses the exception to Rape within Child Marriages. This is a landmark judgment in the history of the Indian judiciary as, in this judgment, the Supreme Court considered the question of whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age would be rape.

In 2013, Section 375 of IPC was amended by Criminal Law Amendment Act, 2013 the age of consent to sexual intercourse was increased from 16 to 18. This brought the law in consonance with all other statutes where a child is recognized as a person below the age of 18 (Juvenile Justice Care and Protection of Children Act, 2012, the Protection of Children from Sexual Offences Act, 2012, and Prohibition of Child Marriage Act, 2006).

Further, under the Prohibition of Child Marriage Act, 2006, a marriage contracted between two parties where one of them is a minor, i.e., below the age of 18 in case of girls and 21 in the case of boys, is declared voidable. It can be nullified within a period of two years after attaining majority by the person who was a minor at the time of the marriage.

However, Exception 2 to Section 375, which provides an exception to the offense of rape in cases of forced sexual intercourse by a man with his own wife if she is of 15 years of age or above, has not been amended. As a result, forced sexual intercourse by a husband with a minor wife between the ages of 15 and 18 is permitted. This provision deals with this case law.

Facts

The Petitioner, Independent Thought is a National Human Rights Organisation, registered on August 6, 2009, and has since been working in the human rights field to protect the child from any kind of exploitation or abuse. The Organisation provides technical and hand-holding support to multilateral bodies and government institutions through direct intervention and advocacy in several states of India [1].

It has also been involved in legal reforms, research, and training with the matter pertaining to child rights [2]. On June 11, 2013, the petitioner has filed a writ petition in the public interest under Article 32 of the Constitution of India challenging the legality and constitutionality of exception 2 with a view to drawing attention to the violation of the rights of girls [3].

Issues

1. Whether Exception 2 to Section 375 of IPC violate Article 21 by keeping a lower age of consent for married girls?
2. Whether Exception 2 to Section 375 of IPC violate Article 14 and Article 15 by discriminating between married and unmarried girls in the context of sexual violence?
3. Whether an exception in the IPC can be made to the age of consent universally fixed by parliament at 18 years for girls in all other statutes?

Arguments in favour of the Petitioner

1. The petitioner argued that the enactment of the Prohibition of Child Marriage Act, 2006 was the result of an increased need for legal measures to curb the socially adherent practice of child marriage. It leads to violence, neglect, abandonment, low education, undernutrition, etc. [4]. Consequently, exempting sexual violence by husbands where the wives are minor defeats the purpose of the said enactment.
2. The petitioner also submitted that Section 375 itself suffered from an internal inconsistency. Section 375 Sixthly recognized 18 as the age of consent for women for the purpose of sexual intercourse, Contradictorily, the said age was lowered considerably in the case of married women. The protection of women from Domestic Violence Act, 2005, The Juvenile Justice (Care and Protection) Act, 2012, The Protection of Children Against Sexual Offences Act,2012, all of which define a child to mean a person below the age of 18, recognizing the incapacity to consent before the said age. Therefore, a legislative consensus on the age of consent can be seen.
3. The petitioner referred to the Justice Verma Committee Report that had led to the enactment of the Criminal Law (Amendment Act, 2013), wherein a specific recommendation was made by the committee to Criminalize the offense of marital rape [5]. He also relied on the 172^nd Law Commission Report where it was specifically recommended that no distinction can be made between married and unmarried girls for the purpose of the age of consent [6].
4. On the Constitutional validity of Exception to Section 375, he argued that the state was legitimizing violence against minors within marriage violating their right to life and dignity under Article 21, as well as failing in its duty to protect the rights of children under Article 15. And the classification between girls below the age of 18 on the basis of marital status was arbitrary and liable to be struck down as violative of Article 14 of the constitution.

Arguments in favour of Intervener Child Right Trust

1. The petitioner highlighted adverse implications on the physical, mental, and sexual health of a girl child owing to the early onset of sexual activity and the complications from teenage pregnancies and abortion. Reference was made to various reports [7].
2. Further, the petitioner argued that Exception 2 to Section 375 classifies minor girls on the basis of their marital status and thus violates Article 14.
3. The petitioner also submitted that it is also inconsistent with the legislative framework for the age of consent in various other statutes like the JJ Act & POCSO.
4. The petitioner relied on the following decisions
   1. Association for Social Justice & Research v. UOI DH [8]
   2. T. Sivakumar v. Inspector of Police, Madras HC [9]
   3. K.S Puttaswamy (Retd.) & Anr. v. UOI [10]
5. In 2017, Karnataka by way of a state amendment to PCMA declares child marriage void ab initio [11]. It was brought pursuant to the recommendation of Justice Shivraj Patil Committee Report on Child Marriages in Karnataka [12]. In effect there is no legal relationship between the contracting parties and the exception would not be applicable to such marriages under Karnataka Amendment Act.

Arguments in favor of the Respondent

1. The respondent relied primarily on Parliamentary Committee Reports and Law Commission Reports to show that the said question has been considered repeatedly by parliament and that there is a constructive thought process and conscious decision on their part to retain the classification [13].
2. The respondent referred to the National Family Health Survey III, which says that 46% of women between the ages 18-29 years in India were married before the age of 18, and hence criminalizing the consummation of such marriage not be appropriate.
3. Another argument was the age limit of 15 years had been retained owing to societal needs and also on the account of the state’s reluctance to interfere in marital life.
4. Further, the respondent also submitted that Exception 2 of Section 375 envisages that if marriage is solemnized at the age of 15 years due to traditions, it should not be a reason to book the husband in case of an offense of rape under IPC.
5. From a constitutional viewpoint, the respondent contended that wherever and whenever there was a blatant violation of the constitutional provision, the judiciary has struck down such legislation. However, where there was seen a coherent thought process behind the legislation, the judiciary has adopted a cautionary approach.

Judgment

A two-Judge Bench of the Supreme Court delivered its verdict on 11th October 2017. The Bench unanimously read down Exception 2 to Section 375 of the Indian Penal Code, the provision states that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape”.

The court ruled that for the purpose of exception the age of consent must be read to 18 and not 15. In effect, this means that Exception 2 would read as “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape, thus making forced sexual intercourse by a man with his minor wife an offense under the rape laws of the IPC”.

The decision of the Supreme Court can be divided into the following parts

First, the Supreme Court examined and evaluated the international legal framework to which India is a signatory, such as the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). The marital rape exemption was held to be in violation of the international legal framework because it facilitated the practice of child marriage in India.

Secondly, the Exception was held to be in contravention of Articles 14 and 21, and hence, unconstitutional.

Thirdly, the exception was found to be in conflict with other laws in effect, and also created internal issues within Indian Penal Code.

International Obligations

The Supreme Court acknowledged national and international studies highlighting the harms of child marriage. The Conventions on the Rights of the Child (CRC), the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), and other international legal obligations were also mentioned, which compels the State to protect the best interest of the child, an obligation violated by Exception 2 to Section 375, IPC [14].

Constitutionality

In response to the 1^st and 2^nd issues, it was held that there was no discernable object behind the distinction between “married” and “unmarried” minor girls. Even if there were an object, the Court concluded, there was no reasonable link between the marital status of a minor girl on the one hand, and the “unclear object” on the other. As result, the categorization was, therefore, held to be arbitrary and an infringement of Article 14 of the Constitution of India [15].

It is difficult to see how this logic can be applied to minor girls alone. When it comes to women’s freedom to reject permission to sexual intercourse, there is no clear reason to divide them into “married” and “unmarried.” Marriage does not entail that a woman has implicitly agreed to sexual contact with her husband. In fact, the Supreme Court clearly stated the same view:

“It must be remembered that those days are long gone when a married woman or a married girl child [not just a married girl child] could be treated as subordinate to her husband or at his beck and call or as his property. Constitutionally a female [not just a minor female] has equal rights as a male and no statute should be interpreted or understood to derogate from this position. If there is some theory that propounds such an unconstitutional myth, then that theory deserves to be completely demolished [16].”

Further, it was concluded that the exception violates the fundamental right of a girl child under Article 21 of the Constitution of India. Justice Madhan B. Lokur delivered his judgment in response to the first issue noted

“We must not and cannot forget the existence of Article 21 of the Constitution which gives a fundamental right to a girl child to live a life of dignity. An early marriage takes away the self-esteem and confidence of a girl child and subjects her, in a sense, to sexual abuse. Under no circumstances can it be ……. said that such a girl child lives 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. It appears that different and irrational standards have been laid down for the treatment of the girl child by her husband and it is necessary to harmonize the provisions of various statutes and also harmonize different provisions of the IPC inter-se [17].”

In a separate and concurring judgment, Justice Deepak Gupta has observed that

“It is true that at times the State, because of the paucity of funds, or other reasons beyond its control, cannot live up to the expectations of the people. At the same time, it is not expected that the State should frame a law, which adversely affects the health of a citizen, that too a minor girl child. The State, under Article 15 of the Constitution, is in fact, empowered to make laws favouring women. Reservation for women as envisaged under Article 15 of the Constitution. In Vishakha v. State of Rajasthan, the Court held that sexual harassment of working women amounts to a violation of the rights guaranteed by Articles 14, 15, and 23 of the Constitution [18].

Internally Inconsistent with other laws

The Supreme Court ruled that the marital rape exemption was incompatible with other laws, such as the Protection of Children from Sexual Offenses Act of 2012 and the Protection of Women from Domestic Violence Act of 2005, which both criminalize non-consensual sexual intercourse with a minor and sexual abuse, respectively [19].

Conclusion

There the decision advocated for the legal framework to be harmonized and addressed many areas of internal conflict. In terms of child rights, Justice Gupta stressed that PCMA takes priority over religion-based personal laws. The decision further highlighted that married girls should be classified as “children in need of care and protection” under the Juvenile Justice Act and should be entitled to take advantage of the safeguards.

The court firmly rejected the government’s arguments that child marriage is a part of culture and tradition. In evaluating the constitutionality of Exception 2 to Section 375, IPC, the Court unavoidably made observations or relied on arguments that are relevant to the greater issue of marital rape.

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1. Independent Thought, About Us Available here
2. WRIT PETITION (CIVIL) NO. 382 OF 2013, Independent Thought v. Union of India on October 11, 2017, Para 3 (Per Madan B. Lokur J.)
3. The Constitution of India, art. 32 Available here
4. Independent Thought v. Union of India on October 11, 2017, Para 11 & 12 (Per Madan B. Lokur J.)
5. Independent Thought v. Union of India on October 11, 2017, Para 50 (Per Deepak Gupta J.)
6. Ibid.
7. See Supra Note 4, Para 11.
8. See Supra Note 5, Para 41.
9. See Supra Note 5, Para 43.
10. See Supra Note 5, Para 86.
11. See Supra Note 4, Para 75.
12. See Supra Note 5, Para 45.
13. See Supra Note 4, Para 79 & 81.
14. See Supra Note 4, Para 33.
15. The Constitution of India, art. 14 Available here
16. See Supra Note 5, Para 32.
17. See Supra Note 4, Para 88.
18. See Supra Note 5, Para 71.
19. See Supra Note 4, Para 94 to 99.

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