Bench:
- Madan B. Lokur (J)
- Deepak Gupta (J)
Issue:
1. Is exception 2 of Section 375 of the IPC related to the girls aged 15 to 18 years liable to be struck down as violative of Articles 14, 15 and 21 of the Constitution?
2. The exception is contradictory to other pro-child acts and human rights act.
Facts:
• The petitioner is a society registered on August 6th, 2009 and has since then working in the area of child rights. It provides technical and hand-holding support to non-governmental organizations as also to governmental and multilateral bodies in several States in India. The society has been involved in legal interventions, research and training on issues concerning children and their rights.
• It has filed a petition under Article 32 of the Constitution in public interest with a view to draw attention to the violation of the rights of girls who are married between the ages of 15-18 years.
• According to the petitioner, Section 375 of the IPC 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 would be statutorily guilty of rape even if the sexual activity was with her consent.
• Almost every statute in India recognizes that a girl below 18 years of age is a child and it is for this reason that the law penalizes sexual intercourse with the girl who is below 18 years of age. Unfortunately, by virtue of Exception 2 of Section 375 of the IPC, if a girl child between 15-18 years of age is married, her husband can have non-consensual sexual intercourse with her, without being penalized under the IPC, only because she is married to him and for no other reason.
• 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 IPC.
Petitioner’s Contentions:
• Exception 2 of Section 375 of IPC is arbitrary, discriminatory and contrary to the beneficial intent of Article 15(3). Absolutely nothing is achieved by entitling the husband of a girl child between 15-18 years of age to have non-consensual sexual intercourse with her. The marital status of the girl child between 15-18 years of age has no rational nexus with the unclear object of this provision.
• The provision has placed the girl child at great disadvantage, contrary to the visionary and beneficent philosophy propounded by Article 15(3) of the Constitution of India.
• A forceful sexual intercourse with a wife between the age of 15-18 is also violative of human rights as defined under Section 2(d) of the Protection of Human Rights Act, 1993 and Section 3 of the Protection of Women from Domestic Violence Act, 2005.
• Merely because a girl child is between 15-18 years of age is married does not result in, in her ceasing to be a child or being mentally or physically capable of having sexual intercourse or indulging in any other sexual activity and conjugal relations.
• The provision results in a situation in which the husband of a girl child between 15-18 years of age has a blanket liberty and freedom to have non-consensual sexual intercourse with his wife.
• Law Commission of India in its 84th report stated that since the Child Marriage Restraint Act, 1929 prohibits the marriage of a girl below 18 years of age, sexual intercourse with a girl of that age should also be prohibited and IPC should reflect that position.
• Child marriage leads to violence, neglect, abandonment, low education, under nutrition, higher maternity mortality and infant mortality rates, etc.
• Various documents and reports were filed to support the case.
Respondent’s Contentions:
• Child marriages are still prevalent in India and it is only voidable and not void under The Prevention of the Child Marriage Act. So it is essential to retain the age of 15 under exception 2 of Section 375 of IPC so as to give protection to the husband and wife against criminalizing the sexual activity between them.
• National Family Health Survey III says that 46% of women between 18-29 years in India were married before the age of 18 and hence criminalizing the consummation of such marriage would not be appropriate.
• Providing punishment for child marriage with consent does not appear to be appropriate in view of socio-economic conditions of the country.
• Exception 2 of Section 375 of IPC envisages that if the marriage is solemnized at the age of 15 years due to traditions, it should not be a reason to book the husband in the case of offence of rape under the IPC.
• The provisions of law should be in such a manner that it cannot affect a particular class of society and exception 2 of section 375 has been provided considering the social realities of the nation.
• By virtue of getting married the girl child has consented to sexual intercourse with her husband expressly or by necessary implications.
• Child marriages have been traditionally performed in different parts of the country and such traditions must be respected.
• 167th report of the Parliamentary Standing Committee of the Rajya Sabha (presented in March 2013) records that several members felt that marital rape has the potential of destroying the institution of marriage.
Judgment:
On considering all the matters in detail the two judges came with separate judgments. It says that Exception 2 to Sec 375 IPC in so far as it relates to a girl child below 18 years is liable to struck down on the following grounds:-
1. It is arbitrary and violative of rights of girl child and not just or reasonable and therefore violative of Art 14, 15 and 21 of the Constitution of India.
2. It is inconsistent with the provisions of POSCO, which must prevail.
The division bench of the Supreme Court passed a concurring and well written judgment by harmonizing the system of laws relating to children and require Exception 2 of Section 375 of the IPC, 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”. It is only through this reading that the intent of social justice to the married girl child and the constitutional vision of the farmers of our constitution can be preserved and protected and perhaps given impetus.
It was clearly stated that the judgment will have prospective effect. It was also clarified that Section 198(6) of the Code will apply to cases of rape of “wives” below 18 years of age, and cognizance can be taken only in accordance with the provision of Section 198(2) of IPC.
Relevant Paragraphs:
The National Charter for Children, 2003 recognized that child marriage is a crime and an atrocity committed against the girl child. Following the charter the National Policy for Children was notified on 2013 and it states that every person below the age of 18 years is a child. And that every child has universal, inalienable and indivisible rights including the right to life, survival, development, education, protection and participation.
The Protection of Children from Sexual Offences Act, 2012 states that law should operate in a manner that the best interest and well being of the child be regarded with paramount importance. And sexual exploitation and sexual abuse of children are heinous crimes and need to be effectively addressed. Moreover, if the husband of a girl child commits penetrative sexual assault on his wife, he actually commits aggravated penetrative sexual assault as defined in Sec. 5(n) of the POSCO Act and is punishable under Sec 6 by rigorous imprisonment of not less than ten years and may extend to imprisonment for life and fine.
The Convention on the Rights of the Child (CRC) under its Art 34 makes all the member countries bound to undertake all appropriate national, bilateral and multi lateral measures to prevent the coercion of a child to engage in any unlawful sexual activity.
Under the Juvenile Justice ( Care and Protection of Children) Act, 2015 a girl child below 18 years of age and who is sought to be married is a child in need of care and protection and therefore required to be produced before a Child Welfare Committee.
A Women’s right to privacy, dignity, bodily integrity and right to reproductive choices should be respected. (Suchita Srivastava v. Chandigarh Administration, State of Maharashtra v. Madhukar Narayan Mardikar, Devika Biswas v. Union Of India)
Rape is a heinous crime which violates the bodily integrity of a girl child, causes trauma and destroys her freedom of reproductive choice is a composite issue that needs serious consideration and deliberation. (State of Karnataka v. Krishnappa, Bodhisattwa Gautam v. Subhra Chakraborty, State of Punjab v. Gurmit Sigh)
The most appropriate resolution to the conflict between IPC and POSCO Act been provided by the State of Karnataka by inserting sub-section(1A) in Sec 3 of PCMA declaring that every child marriage solemnized henceforth is void ab intio and the husband of the girl child is punishable under PCMA.
