Author:- Annshika Bakshi, a student at Indian Institute of Management (IIM-Rohtak)

The Supreme Court of India made a historic ruling on October 11, 2017, setting a precedent that prioritized the bodily dignity of every girl and criminalized rape within underage marriages. This pivotal decision in the case of Independent Thought v. Union of India and Others underscored the constitutional obligation of the government to confront the issue of child marriage and ensure the protection of rights for married girls. Within a country grappling with the highest prevalence of child marriages globally, where young married girls face an alarming vulnerability to rape compared to older married women, this legal reform held profound significance. Central to this judicial milestone was a critical examination of whether sexual relations between a man and his wife, a girl aged between 15 and 18 years, should be deemed as rape, scrutinizing Exception 2 to Section 375 of the Indian Penal Code (IPC) that previously allowed such relations. The Supreme Court’s decision markedly constrained this exception, aiming to safeguard the rights and dignity of married girl children, aligning it with the Protection of Children from Sexual Offences Act (POCSO Act) and other legal frameworks focused on shielding children from harm. This essay explores and analyses the case of Independent Thought v. Union of India by delving into the arguments presented by both sides, the core verdict, and the broader implications outlined by the Court.

In 2013, the child advocacy group Independent Thought initiated a public interest writ petition before the Supreme Court. This legal action aimed to contest the legality of Exception 2 within Section 375 of the IPC, which exempted a husband from criminal charges for engaging in sexual relations with his wife aged between 15 and 18 years. The petitioners contended that this provision infringed upon the rights of married girl children in the 15-18 age bracket, emphasizing that in all other circumstances governed by the IPC, the age of consent for sexual activity stood at 18 years. The petition sought clarification and alignment of Exception 2 with prevailing legislation concerning child marriage and the rights of minors. Independent Thought’s petition challenged the constitutionality of Exception 2, alleging it to be arbitrary and discriminatory by unfairly distinguishing between the rights of married and unmarried girls aged 15-18.

The Supreme Court extensively examined the legality of Exception 2, focusing on its constitutionality. Highlighting that Exception 2 unfairly differentiated between married and unmarried girls without a valid connection to the purpose of Section 375, the Court labelled this differentiation as unjustified, arbitrary, and discriminatory. This distinction was deemed to contradict the constitutional principles of equality and dignity that the Constitution upholds.

The Court briefly grappled with the pivotal issue of how Exception 2 within Section 375, IPC, infringed upon the privacy rights of a girl child, as acknowledged in the K.S. Puttaswamy vs. Union of India case. However, direct engagement with this concern was lacking in the Court’s proceedings. Justice M. B. Lokur shed light on the significance of bodily integrity and sexual autonomy within the realm of privacy. Drawing upon key legal precedents—like Suchita Srivastava vs. Chandigarh Administration, where reproductive choice equated to personal liberty and privacy, and State of Maharashtra vs. Madhukar Narayan Mardikar, emphasizing a woman’s entitlement to protection from intrusion and sexual assault regardless of her personal history—the Court underscored the gravity of sexual violence as an unlawful violation of a woman’s privacy.

The Court highlighted the discrepancy between Exception 2 and various statutes like the POCSO Act, the Prohibition of Child Marriage Act, and the Juvenile Justice Act. These laws recognized individuals under 18 as minors and set the age of consent for sexual relations at 18 years. This glaring disparity rendered Exception 2 an aberration, allowing non-consensual intercourse for married girls aged 15-18. Consequently, the Court concluded that Exception 2 contradicted the very goals of child protection laws and transgressed Articles 14, 15, and 21 of the Constitution. To address this discrepancy, the Court amended Exception 2, specifying that sexual relations with a wife under 18 years old would be deemed as rape.

The Court’s examination of diverse legal frameworks and statutes enriches its ruling on Exception 2 within Section 375 of the Indian Penal Code (IPC), unveiling the convergence of laws shielding the interests of children, women, and human rights. This serves to bolster the decision’s solid foundation within constitutional and legal parameters.

The Protection of Human Rights Act of 1993, emphasizing liberties like freedom, life, equality, and dignity, emphasized the violation of fundamental rights when compelling a girl child into sexual activity with her spouse. The Court gave substantial weight to this violation, impacting her equality, liberty, and dignity, pivotal facets within its deliberations.

The Protection of Women from Domestic Violence Act, 2005, played a pivotal role by delineating actions by a husband that jeopardize the well-being, safety, or dignity of a girl child, highlighting the serious nature of sexual abuse and its ramifications.

The Prohibition of Child Marriage Act, 2006 (PCMA Act), defining a ‘child’ as an individual below 18 years, significantly influenced the Court’s considerations. It elucidated the legal repercussions for marrying a girl under 18, underlining accountability regardless of whether the male involved is also a minor.

Sections 9, 10, 11, and 14 of the PCMA Act delineate penalties, facilitation, prohibition, and annulment of child marriages, signalling legislative intent to eradicate this practice and safeguard the rights of minors.

The Protection of Children from Sexual Offenses Act of 2012 (POCSO Act), crafted to safeguard children’s best interests, was referenced, highlighting the gravity of penetrative sexual assault and its link to the husband of a girl child. The Act’s primacy over conflicting laws and its stringent punitive measures were pivotal considerations for the Court.

The Juvenile Justice (Care and Protection of Children) Act, 2015, defining a ‘child’ as an individual under 18, emphasized the extended protection for children at risk or in jeopardy, even preceding the marriageable age.

The Court also alluded to Articles 14, 15, and 21 of the Indian Constitution, underscoring the violation of Article 21 due to Exception 2 encroaching upon bodily integrity, dignity, and reproductive autonomy of the girl child. The potential repercussions of sexual activity on the health and reproductive rights of the girl child were also prominently highlighted.

The Court’s decision went beyond mere legal intricacies, recognizing the detrimental effects of child marriage on the physical, mental, and economic welfare of the girl child. It emphasized how early marriage significantly hampers a girl’s growth, independence, and safety, reaffirming the imperative. 

The Court briefly touched upon the girl child’s right to privacy but refrained from an in-depth exploration. Justice M. B. Lokur contextualized privacy within bodily integrity and autonomy, citing precedents that championed reproductive choice and safeguarded women from intrusion and assault. However, the Court avoided a thorough examination due to potential wider implications on marital rape legality.

This landmark ruling by the Supreme Court marks a pivotal step in safeguarding the rights of married girl children. By narrowing Exception 2 in Section 375 IPC, the Court addressed a legal loophole allowing non-consensual relations within a specific age range. The judgment not only aligns with child protection laws but also underscores the urgent need to ensure equality, dignity, and autonomy, especially for vulnerable groups like married girl children. Nonetheless, the Court’s cautious stance on privacy rights concerning marital rape necessitates deeper exploration in future legal discourse.

“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. The documentary material placed before us clearly suggests that 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 Indian Penal Code. Her husband, for the purposes of Section 375 of the Indian Penal Code, effectively has full control over her body and can subject her to sexual intercourse without her consent or without her willingness since such an activity would not be rape. Anomalously, although her husband can rape her but he cannot molest her for if he does so he could be punished under the provisions of the Indian Penal Code. This was recognized by the LCI in its 172nd report but was not commented upon. It appears therefore 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 Indian Penal Code inter-se.”

Fundamentally, this verdict showcases the judiciary’s dedication to safeguarding fundamental rights, specifically for marginalized and susceptible segments of society. It establishes a precedent, fostering a broader pursuit of justice and equality within the sphere of marital relationships and children’s rights in India.

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