Independent Thought v. Union of India
Supreme Court of India · 11 October 2017 · 2 judges
Exception 2 to Section 375 IPC was read down so that sexual intercourse by a man with his wife who is below 18 years of age is rape; the question of marital rape of adult women was left open.
Facts
Independent Thought, a society working on child rights, filed a writ petition under Article 32 in public interest about the rights of girls married between 15 and 18 years of age. Section 375 IPC fixes the age of consent at 18 years, but Exception 2 provided that sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape. The petitioner contended that the exception was arbitrary, discriminatory and contrary to Article 15(3), since a married girl child of 15 to 18 could be subjected to non-consensual intercourse by her husband without it being an offence under the IPC. Though the petition challenged the whole exception, the petitioner and the intervener limited the challenge to girls aged 15 to 18 years. The Union of India defended the exception.
Questions before the Court
- Is Exception 2 to Section 375 IPC, in so far as it relates to girls aged 15 to 18 years, arbitrary, discriminatory and violative of Articles 14, 15 and 21?
- How is the conflict between Exception 2 and pro-child statutes such as the POCSO Act and the Prohibition of Child Marriage Act, 2006 to be resolved?
What the Court held
- Sexual intercourse with a girl below 18 years of age is rape whether or not she is married. The distinction drawn by Exception 2 between a married and an unmarried girl child is artificial, arbitrary and discriminatory, has no rational nexus with any objective, and is contrary to Articles 15(3) and 21.
- Intercourse by a husband with a wife between 15 and 18 is aggravated penetrative sexual assault under the POCSO Act. Pro-child statutes are special laws and must prevail over the IPC; Deepak Gupta, J. added that under Section 42A of the POCSO Act, POCSO overrides an inconsistent law.
- Exception 2 to Section 375 IPC is to be read as: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape." Deepak Gupta, J. added that reading it down creates no new offence, since the offence already exists in Section 375 IPC and the POCSO Act.
- The Court expressly made no observation on marital rape of a woman aged 18 years or above, since that issue was not before it.
- Deepak Gupta, J. stated that the judgment will have prospective effect and that cognizance in such cases is governed by Section 198(6) of the Code of Criminal Procedure.
Why it matters
The Court brought the IPC into line with the age of 18 used in the POCSO Act and other child-protection statutes by reading down the marital exception to rape for wives below 18. It shows the Court using purposive and harmonious construction of statutes on the same subject, together with Articles 14, 15(3) and 21, to remove an arbitrary classification, while expressly leaving the wider question of marital rape of adult women undecided.
In the Court's words
Copied from the official judgment; each passage links to its page.
“Exception 2 to Section 375 of the Indian Penal Code, 1860 (the IPC) answers this in the negative, but in our opinion sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved.”
“Being purposive and harmonious constructionists, we are of opinion that this is the only pragmatic option available. Therefore, we are left with absolutely no other option but to harmonize the system of laws relating to children and require Exception 2 to Section 375 of the IPC to now be meaningfully read as: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape."”
“Whether sexual intercourse that a husband has with his wife who is between 15 and 18 years of age is described as rape (not an offence under Exception 2 to Section 375 of the IPC) or aggravated penetrative sexual assault (an offence under Section 5(n) of the POCSO Act and punishable under Section 6 of the POCSO Act) the fact is that it is rape as conventionally understood, though Parliament in its wisdom has chosen to not recognize it as rape for the purposes of the IPC.”
“There can be no cavil of doubt that the Courts cannot create an offence. However, there can be no manner of doubt that by partly striking down Section 375 IPC, no new offence is being created. The offence already exists in the main part of Section 375 IPC as well as in Section 3 and 5 of POCSO. What has been done is only to read down Exception 2 to Section 375 IPC to bring it in consonance with the Constitution and POCSO.”
Provisions interpreted
Related judgments
Case and bench
- Parties
- Independent Thought v. Union of India
- Case
- Writ Petition (Civil) No. 382 of 2013
- Decided
- 11 October 2017
- Bench
- Madan B. Lokur, Deepak Gupta
- Opinions
- Unanimous. Madan B. Lokur, J. wrote the main judgment; Deepak Gupta, J. agreed with his reasoning and conclusions and wrote a separate concurring judgment giving further reasons.
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