Author: Ayush Kumar Gautam, a student of Symbiosis Law School, Pune.
FACTS OF THE CASE
The petitioner has been a registered member of the community since 2009. He has dedicated his time to advocating for the rights of children.
The community has lodged a petition under Article 32 of the Constitution of India, 1950 in the interest of the public to highlight the abuse of a young girl who was married when she was between 15 and 18 years old.
The petitioner believed that Section 375, which sets the age of consent for sexual activity at 18 years old, states that if someone engages in sexual activity with a girl under 18, they will be considered guilty of rape under the law, regardless of consent.
Most laws in India consider a girl under 18 to be a child, so anyone having sexual relations with a girl under this age should face legal consequences.
Hence, as per Exception 2 of Section 375 of the Indian Penal Code, a husband can engage in non-consensual sexual activity with his wife between the ages of 15 and 18 without facing legal repercussions solely because she is married to him.
Therefore, the law in the Indian Penal Code does not consider it an offense if a girl child is forced to have sexual intercourse against her will and cannot refuse her husband.
Hence, it was argued that exception 2 to Section 375 of the IPC is not just random but also prejudicial and goes against the positive purpose of Article 15(3) of the Constitution of India, allowing Parliament to create specific regulations for women and children.
ISSUES
Whether it considered rape if a husband has sexual intercourse with his 15 to 18 year old wife?
Whether the Exception 2 to Section 375 evaluated as discriminatory and in violation of Articles 14, 15, and 21 of the Indian Constitution?
Whether Exception 2 to Section 375 of IPC, specifically concerning girls aged 15 to 18 years, unconstitutional and should it be invalidated?
CONTENTION OF THE PARTIES
The counsel for the Petitioner contended that Exception 2 of Section 375 is biased and goes against Article 15(3) of the Constitution of India. Giving a young girl’s husband permission to have sex with her without her consent does not result in any significant achievements. Engaging in sexual intercourse with a wife aged 15 to 18 years is considered a violation of Human Rights according to Section 2(d) of the Protection of Human Rights Act, 1993 and under Section 3 of The Protection of Women from Domestic Violence Act, 2005.
The counsel on the other side stated that child marriages are common in India and are considered voidable rather than void according to The Prevention of the Child Marriages Act. Therefore, it is crucial to keep the age of 15 years in Exception 2 of Section 375 of IPC to protect husbands and wives from being prosecuted for engaging in sexual activities.
Child marriages are conducted in various regions of the country as part of traditional practices, therefore, it is important to honor this tradition. If a marriage is conducted at the age of 15 as per customs, it would not warrant punishment for the husband in a rape case. The counsel also mentioned that the girl child gave her consent to have sexual intercourse with her husband after they were married, implying consent.
RULES
RATIO OF THE JUDGEMENTS
JUSTICE MADAN LOKUR:
He said that after examining reports from different legal bodies like Law Commission of India 172nd Report, Human Rights Council, Protection of Humans Rights Act, 1993, Juvenile Justice Act, 2015 it has been concluded that various laws define a child as someone under 18 who has the right to be protected and treated with dignity. If a child is unfortunately married, they should be safeguarded from physical and mental domestic violence, as well as sexual abuse. If a man commits penetrative sexual assault against a minor girl whom he is married to, he can be charged with a crime under The Protection of Children from Sexual Offences Act, 2012 (POSCO).
In this system of laws protecting children, exception 2 of Section 375 IPC is identified as not meeting the criteria for rape in this particular circumstance. Therefore, Article 15(3) was included in the constitution with the aim of eradicating the socio-economic disadvantages faced by women in order to empower them and achieve gender equality. Additionally, it is unquestionable that a woman’s freedom to make decisions regarding reproduction is considered part of ‘personal liberty’ as outlined in Article 21 of Constitution of India.
Rape is a grievous offense that results in trauma and takes away a woman’s freedom to choose whether or not to have children, something that requires careful attention and consideration. Hence, a contradiction exists between the regulations of IPC and POSCO Act.
Thus, the act of raping a married girl child aged between 15 and 18 is not considered a crime according to IPC exception 2 of Section 375, but it is classified as aggravated penetrative sexual assault under section 5(n) of the POSCO Act and can be punished under Section 6 of the POSCO Act. So, resolution of conflict will be done for the benefit of a young girl.
JUSTICE DEEPAK GUPTA:
He mentioned that in this appeal, our primary focus is on Article 14 and 21 of the Indian Constitution. Legislative history confirms that individuals under 18 years old are considered children due to their lack of full development and awareness of the consequences of their actions. He also stated that it is completely within the jurisdiction of Parliament to determine the age of consent mentioned in clause six of section 375 IPC, as well as the legal marriageable age. He elaborated on his opinion and concurred with Justice Madan’s viewpoint that if a 15-year-old girl is forced to engage in sexual activity by her husband, it can have a detrimental effect on her body and mind, especially since she is still developing and vulnerable to trauma.
Therefore, the State cannot be used as a defence for upholding the tradition and sanctity of marriage for girl children, as this would directly contradict Articles 14, 15, and 21 of the Indian Constitution. Certain other elements contribute to the total discrimination against girl children in exception 2 of Section 375 IPC.
ANALYSIS
Marital rape is not acknowledged in India. Marital rape is when a husband forcefully engages in sexual intercourse with his wife against her will. The current instance was the first to acknowledge it.
The Court ruled that Exception 2 of Section 375 is not a valid classification and therefore goes against Article 14 of the Indian Constitution. It was also noted that Exception 2 clearly violated the right to live a dignified life with basic autonomy and safety, as stated in Article 21. Additionally, the court pointed out that the Section 375 exception did not align with the POCSO and Juvenile Justice Act, which declare any individual under 18 years old as a child. Allowing present exception 2 to Section 375 enables non-consensual intercourse by a husband with his wife aged between 15 to 18 years. As a result, in order to make Exception 2 consistent with the main provision, the court decided that Exception 2 should be interpreted as stating that sexual intercourse with a wife over the age of 18 will not be considered rape. The court, in relation to Article 21 of the Indian Constitution, stated that the right to life encompasses the right to grow physically, mentally, and financially as a self-reliant adult woman. It also mentioned that if this provision is allowed, it will have a harmful effect on the physical and mental well-being of the girl child, leading to serious consequences. At present, marital rape is not acknowledged as a crime in India, but the recent case marked a small advancement towards its recognition. The legal situation has only partially addressed marital rape by only penalizing it up to the age of 18, not beyond. The Court followed the principle of interpreting laws in a way that aligns with the main provision, as well as with the POCSO and Juvenile Justice Act, when making the exception. The court did not rule the entire exception as unconstitutional but instead interpreted it in a way that addressed the case’s issue. This legal proceeding is ground breaking and pioneering in its effort to transform Indian society.
CONCLUSION
The Supreme Court ruled that exception 2, pertaining to girls under 18 years old, is unreasonable, unjust, unfair, and infringes on the rights of the girl child. There is no doubt that the partial striking down of Section 375 of IPC does not result in the creation of a new offense. The crime is already covered in Section 375 of IPC and Sections 3 and 5 of The Protection of Children from Sexual Offences Act, 2012 (POCSO). As the Court has not addressed the broader issue of “marital rape,” exception 2 to Section 375 of IPC should be interpreted narrowly to ensure it complies with the law and aligns with the Constitution of India.
After examining the details of the case and other aspects of the petition, both judges reached the same conclusion through separate judgments that Exception 2 of Section 375 of IPC should be invalidated in regards to girls under 18. This decision was based on the grounds that it is arbitrary, infringes upon the rights of underage girls, and is in violation of Articles 14, 15, and 21 of the Indian Constitution. It is both discriminatory and not in line with the provisions of POSCO, which should take precedence.
FAQS
1. What was the case about?
The case challenged Exception 2 to Section 375 IPC, which allowed marital rape of minor wives aged 15-18.
2. Who filed the petition?
The petition was filed by Independent Thought, an NGO advocating for child rights.
3. What did the Supreme Court decide?
The Court struck down Exception 2 to Section 375 IPC, declaring sexual intercourse with a wife under 18 years as rape.
4. Why was the ruling significant?
The decision aligned child marriage laws with the POCSO Act, protecting minor girls from sexual abuse within marriage.
5. What rights were upheld?
The judgment upheld the right to equality, dignity, and protection from exploitation under the Constitution.
