Author: Manvi Tokas, NorthCap University
COURT- SUPREME COURT OF INDIA
HON’BLE JUDGES- MADAN B. LOKUR AND DEEPAK GUPTA
CASE CATEGORY: LETTER PETITION AND PIL MATTER – SOCIAL JUSTICE MATTERS
APPEARING PARTIES: RANA MUKHERJEE, SR. ADV., GAURAV AGRAWAL, ABHIKALP PRATAP SINGH, ABHAY ANTURKAR, VIKRAM SRIVASTAVA, BINU TAMTA, SHAILENDER SAINI, SADHANA SANDHU, B.V. BALARAM DAS, GURMEET SINGH MAKKER, DAISY HANNAH, KASTURIKA KAUMUDI, B. KRISHNA PRASAD, JAYNA KOTHARI, DISHA CHAUDHARI, ANINDITA PUJARI AND KAVITA BHARADWAJ, ADVS.
DATE OF JUDGMENT- 11/10/2017
INTRODUCTION-
The supreme court of India in the case of Independent Thought v. Union of India, is a landmark case protecting the rights of women and children. It upheld the gender rights, child rights and constitutional morality through its just judgment. The case discovers the context of marital rape that is sexual intercourse with a spouse without consent with reference to child marriages as well the social exploitation of married women. The case covers the constitutionality and validity of exemption 2 of section 375 of IPC, which includes acts done by husband to wife upon marriage to not come under the definition of rape, given that she is above 15 years of age.
FACTS-
The petition under article 32 of the constitution was filed in the supreme court in this case by a group of organization, working for child rights and other social activities. The organization being registered 6th August, 2009, 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.
According to the Petitioner, Section 375 of the Indian Penal Code 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. But, unfortunately, according to the exception 2 of section 375, if a man has non consensual intercourse with his wife given that she is above 15 years of age, the same would not amount to rape. 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 Indian Penal Code.
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. It was also submitted that whatever be the objective sought to be achieved by this, the marital status of the girl child between 15 and 18 years of age has no rational nexus with that unclear object. Merely because the girl is of the age between 15 and 18 does not exempt her from her rights or make her capable enough to indulge in conjugal rights or marital affairs. A husband who violates the personal freedom of the wife is exempted in such situations only due to the ‘marital status’ that exists between them.
It was thus submitted by the counsel that such exception is highly unjust and discriminatory in nature, and that the court must identify its constitutionality and validity of such an exception under section 375. Such a section, the counsel contended was against the article 15(3) which gives the right to the parliament for making fair and beneficial laws for the women and children of the country.
The petitioner also drew attention on the 84th Commission Report, 1980, considered the anomalies in the law relating to rape, particularly in the context of the age of consent for sexual intercourse with a girl child. A history of minimum ages regarding the consent were seen and the difficulties in establishing a right age for a married girl was highlighted. The petitioner contended how with regards to consent, a girl below the age of 18 years who is not married is given blanket protection irrespective of consent being present or not. Whereas a married girl is also given protection if she is below the age of 15 years but unfortunately her consent is automatically invalid if she is above 15 years of age and has non-consensual intercourse with her husband. This discrimination and unjustified the counsel contended.
LEGAL QUESTIONS INVOLVED-
Whether sexual intercourse between a man and his wife being a girl between 15 to 18 years of age is rape?
Whether the exception 2 of section 375 IPC, relating to girls of the age 15-18 is invalid or unconstitutional?
Whether exception 2 of section 375 unconstitutional and liable to be struck down?
JUDGMENT-
The supreme court analyzed the case with facts and examining them. Referring to the National Family Health Survey – 3 (of 2005) in which it is stated that 46% of women in India between the ages of 18 and 29 years were married before the age of 18 years. It is also estimated, interestingly but disturbingly, that there are about 23 million child brides in the country. Such number showcased the daily discrimination and inequality happening in the society to minor girls.
Report referred to is “A Statistical Analysis of Child Marriage in India based on Census 2011”. This report is prepared by a collaborative organization called Young Lives and the National Commission for the Protection of Child Rights and was released in June 2017. It is stated:
“Child marriage is not only a violation of human rights, but is also recognized as an obstacle to the development of young people. The practice of child marriage cut shorts a critical stage of self-discovery and exploring one’s identity. Child marriage is an imposition of a marriage partner on children or adolescents who are in no way ready and matured, and thus, are at a loss to understand the significance of marriage. Their development gets comprised due to being deprived of freedom, opportunity for personal development, and other rights including health and well- being, education, and participation in civic life.”
On 6th July, 2006 the Secretary-General of the United Nations submitted a report to the General Assembly called the “In-depth Study on all forms of violence against women”. In the chapter relating to violence against women within the family and harmful traditional practices, early marriage was one of the commonly identified forms of violence. Similarly, early marriage was considered a harmful traditional practice in the Study on Child Abuse: India 2007 (referred to later) by the Government of India.
The National Charter was followed by the National Policy for Children notified on 26th April, 2013. The National Policy explicitly recognized in Clause 2.1 that “every person below the age of 18 years is a child. Among the Guiding Principles for the National Policy was the recognition that every child has universal, inalienable and indivisible human rights; every child has the right to life, survival, development, education, protection and participation.”
The Preamble to the POCSO Act states that it was enacted with reference to Article 15(3) of the Constitution. The Preamble recognizes that the “best interest of a child should be secured, a child being defined Under Section 2(d) as any person below the age of 18 years”. In fact, securing the best interest of the child is an obligation cast upon the Government of India
having acceded to the Convention on the Rights of the Child (the CRC).
The Juvenile Justice (Care and Protection of Children) Act, 2015 (the JJ Act) is also relatable to Article 15(3) of the Constitution. Section 2(12) of the JJ Act defines a child as a person who has not completed 18 years of age.
Reference to many cases was done for a justified passing of the judgment, some of them are as follows-
In State of Maharashtra v. Madhukar Narayan Mardikar, wherein it was observed that no one has any right to violate the person of anyone else, including of an ‘unchaste’ woman.
In State of Karnataka v. Krishnappa (2000) an 8 year girl was raped and it was held in paragraph 15 of the Report: “Sexual violence apart from being a dehumanising act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honor and offends her self-esteem and dignity-it degrades and humiliates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience”.
In Bodhisattwa Gautam and it was observed in paragraph 7 of the Report: “Rape is one of the most heinous crimes committed against a woman. It insults womanhood. It violates the dignity of a woman and erodes her honour. It dwarfs her personality and reduces her confidence level. It violates her right to life guaranteed Under Article 21 of the Constitution of India”.
C.R. v. UK and Eisenstadt v. Baird case it was said that “it is quite clear that a rapist remains a rapist and marriage with the victim does not convert him into a non-rapist. Similarly, a rape is a rape whether it is described as such or is described as penetrative sexual assault or aggravated penetrative sexual assault. A rape that actually occurs cannot legislatively be simply wished away or legislatively denied as non-existent”.
In this case the ill effects of marriages were also identified by the honorable judges. In a report by the UNICEF, there is an Article on ending child marriage and the ill effects of child marriage have been set out thus: “Married girls are among the world’s most vulnerable people. When their education is cut short, girls lose the chance to gain the skills and knowledge to secure a good job and provide for themselves and their families. They are socially isolated”.
The World Health Organisation, in a Report, dealing with the issue of child brides found that though 11% of the births worldwide are amongst adolescents, they account for 23% of the overall burden of diseases. Therefore, a child bride is more than doubly prone to health problems than a grown-up woman.
The supreme court of thus, identifies the exception 2 of the section 375 of IPC as discriminatory and violative of article 14 of the constitution.
The court made it clear that they in this case are not dealing with the wider issue of marital rape in the country but are only interfering in the exception of the IPC wherein the age of 15-18 was identified to be discriminatory and unjust and the respective exception to be held violative of article 14, 15 and 21 of the Constitution of India.
SUMMARY
The case of Independent Thought v. Union of India thus stands as a landmark case as the initiation and bold move taken by the group of social activists claiming the unconstitutionality and invalidity of the exception 2 of the section 375 was first bought up in the court of law. The Supreme Court of India was also very just and fair with its decision as it not only identified the exception 2 to be unconstitutional but also saw the plight of minor girls and how their rights are easily violated in the country. The effects of child marriages and the trauma a child could get from an offence like rape was acknowledged. Reference to numerous cases and international reports was made for a fair and just judgment. The biased and unfair age of 15-18 years in exception was also identified and was thus struck down as the court acknowledged the fact that this age gap does not make a girl more mature just because she is married. The Protection of Children from Sexual Offences Act (POCSO Act), 2012, prescribes the age of consent as 18 years for both male and female, the rape law provision in the Indian Penal Code postulated 15 years as the age of consent for married girls. This in particular was biased and based on patriarchal norms which view women as no more than an object.
Thus the court, struck down the exception 2 of the section 375 of IPC due to the following reasons –
It was inconsistent with the provisions of POSCO which according to section 42a must prevail
Its gender biased and discriminatory
Based on patriarchal norms, neglecting the rights of a wife
Violative of fundamental rights namely article 14, 15 and 21 of the constitution
Arbitrary, unjust, unfair and whimsical in nature
CONSLUSION
Independent Thought v. Union of India, 2017, thus stands as a landmark case identifying the rights and value of minor girls in a marriage institution. The age-based discrimination on consent was thus removed, as it was unjust and wrong for the law to give blanket immunity for sexual intercourse to be rape of girls below the age of 18 with/without consent, whereas, for a married girl it would be rape only if the girl is below the age of 15 and non-consensual intercourse by the husband occurs. Such a discrimination was thus identified to be contrary to provision of POSCO as well as violative of article 14, 15 and 21 of the Constitution of India. The court in this judgment identified marital rape to be unconstitutional in a way for the first time. With this bold judgment, it became a strong legal precedent for future cases.
FAQS
What is meant by the term Marital Rape?
Marital rape or spousal rape means indulging in sexual intercourse with one’s spouse without consent. The absence of consent is an essential element and need not include physical violence.
Is marital rape penalized in India?
No, as of now marital rape is not a crime or an offence in India.
What is section 375 of IPC?
Section 375- Rape “A man is said to commit “rape” if he—
penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person…………………..
Section 375 of IPC is now Section 63 of BNS, Bhartiya Nyaya Sanhita, 2023.
