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On October 11, 2017, the Supreme Court of India issued a landmark judgment protecting every girl’s right to bodily dignity and criminalising rape during underage marriage. In Independent Thought v. Union of India and Others, the country’s Supreme Court first defined the government’s constitutional and fundamental duty to combat child marriage and protect the rights of married females. This legislative reform affects India, which has the highest rate of child weddings in the world and married girls who are three times more likely to be raped than women who are married above the age of 18.

KEYWORDS– wife, minor, rape, consent, child marriage


In this decision, the Supreme Court evaluated whether sexual intercourse between a man and his wife, who is a girl between the ages of 15 and 18, constitutes rape. Although Exception 2 to Section 375 of the Indian Penal Code, 1860 (IPC) provided otherwise, the Supreme Court restricted the scope of the exception and resolved the inconsistency between the IPC and the Protection of Children from Sexual Offences Act, 2012 by increasing the minimum age of consent such as ‘marital’ sexual intercourse to 18 years in order to uphold and safeguard the human rights of a married girl child. The Court took a purposeful approach and struck down Exception 2 to Section 375, IPC. 

 The Court observed that the Exception created a pointless and fabricated distinction between married and unmarried girls, with no rational connection to the Section’s objective, and found it to be arbitrary and discriminatory under Articles 14 and 15 of the Constitution, as well as a violation of basic human dignity guaranteed by Article 21 of the Constitution. The Court also recognised that the Exception ran counter to the structure adopted by other pro-child legislations, like POCSO, which would prevail as special legislation.


A. Independent Thought, a registered society and nonprofit organization, submitted a petition. The NGO specialising in legal research, legal help, and counseling connected to children’s rights and other children’s rights. The NGO provides help, technical assistance, and legal counsel to a number of other non-governmental organisations. It also helps the governments of various states.

B. In compliance with Article 32 of the Indian Constitution, Independent Thought filed a writ petition W.P.(C) 382/2013 with the Hon’ble Supreme Court to draw attention to the rights infringed of girls who are married between the ages of 15 and 18.

C. The petitioner is demanding a writ determining that Exception 2 to Section 375 of the Indian Penal Code, 1860 violates Articles 14, 15, and 21 of the Constitution. As stated in Exception 2 of Section 375 of the IPC, it is not rape if a man participates in sexual intercourse with his wife who is older than 15 but under the age of 18 years with or without her knowledge or agreement.


  • Is it rape if a man and his wife, a girl between the ages of 15 and 18, engage in sexual activity?
  • Is Exception 2 of the IPC’s Section 375 unreasonable?
  • How biased is Exception 2 to IPC Section 375?



  1.  The petitioner contended that because Section 375 of the IPC defines rape as having a sexual relationship with or without the girl’s permission while she is under the age of 16, whether or not the girl is his wife has no influence on whether or not the act constitutes rape. As a result, it should not be expected that the man will be granted immunity for rape under Exception 2 to Section 375 of the IPC just because she is married to him and he has permission to touch her body.
  2.  Exception 2 to Section 375 of the IPC is not only unfair, but it also violates Article 15(3) of the IPC, which directs Parliament to provide particular arrangements for women and children.
  3.  Marriage of a female child does not automatically indicate approval to participate in sexual relationships with her husband, indulge in any other sexual behavior, or have intimate contact with her spouse.
  4.  The mere fact that something has been done customarily in the past does not mean it will apply in current times and will automatically be forbidden as a criminal activity. The distinction between a girl who is married between the ages of 15 and 18 having sex with or without her consent and a girl under the age of 18 having sex with or without her consent being rape demonstrates an obvious bias.
  5.  Given that women who gets married under the age of 18 will face emotional and medical consequences, the marriage age is set at 18 years old. The vast majority of child marriages result in unwanted pregnancies at such a young age, resulting in premature births and poor health for both the mother and her child.
  6.  The 84th report identified significant discrepancies in the legislation relating to the rape of females under the age of 18. It proposed in their 172nd report that an exception be added to Section 375 of the IPC to raise the age from 15 to 16 so that sexual intercourse with her husband would not constitute sexual assault if she was over the age of 16. However, the LCI’s proposal was rejected by the Supreme Court.  As a result, assuming that the married girl has consented to any sexual contact is wrong.
  7.  When an obligation of the Constitution is violated, it becomes unlawful and can be repressed or deemed unconstitutional. The respondents’ arguments were irrational and carelessly constructed. It is not always apparent that anything will be judged against current norms of society and thus against the law and a criminal infraction simply because it has been done for quite some time as a common practise.


  1. They asserted that the nation’s financial condition and educational development is stagnant and not improving. They agreed to preserve the age of 15 years indicated in Exception 2 to Section 375 of the IPC in order to uphold the rights of husband and wife in criminalising sexual acts between them.
  2. According to a report, 46% of women are under the age of 18. There are also an estimated 23 million child brides in India. As a result, criminalising marriage consummation and linking it to such a dreadful and horrible offense as rape would be completely unfair and impractical. Given India’s socio economic position, punishing child marriage under Exception 2 to Section 375 of the IPC would be incorrect because it has long been a common practise based on cultural norms, basic facts, and tradition.
  3. The Law Commission of India (LCI) proposed in its 172nd Report that the wife’s age be raised to 16 years old. However, after thorough consultations with numerous stakeholders, this recommendation was dropped. If the marriage occurred at the age of 15, simply because it was a tradition should not be sufficient to convict the husband of rape.
  4. According to the Juvenile Justice Act of 2015, the Constitution provides for recourse for children under the age of 18 who are in urgent danger. Before deciding whether Exception 2 to Section 375 of the IPC is arbitrary, it is necessary to establish if a law, regulation, or act can be declared invalid simply because it is arbitrary in nature. The addition of Article 329A was challenged in the case of Indira Gandhi v. Raj Narain (1975) due to its arbitrary nature. These arbitrary clauses weakened and destroyed the genuine significance of the principle of law, as explained by A.V. Dicey.
  5. The husband is free from rape charges under Exception 2 of Section 375 of the IPC, but he will be held liable for other acts under other legal rules. For example, if a husband hits a girl kid and engages in sexual intercourse with her, he will face charges under Sections 323, 324, and 325 of the IPC, but he will not face charges for rape. This is unique because the husband will be convicted of lesser charges.


After considering the facts of the case and other factors relevant to the petition, both judges concluded in separate judgments that Exception 2 of Section 375 of the Indian Penal Code, 1860, as it relates to girl children under the age of 18, is liable to be quashed because it is arbitrary and a violation of a girl child’s rights that is not plausible or equitable, and it also violates Articles 14 and 15 of the Constitution. Furthermore, it violates POCSO’s rules, which must be obeyed.


The Independent Thought took a big step forward by acknowledging the rights of the girl child by issuing this historical and landmark verdict, which provided the girl child with a better, free, and safe environment. The court ultimately read down Exception 2 to Section 375 of the IPC, which provided immunity to the husband from charges of rape and sexual intercourse with her wife with or without her consent if the wife was over the age of 15, but the court read down this exception, making it illegal for a husband to have sexual intercourse with his wife who is over the age of 15. By laying down this verdict, the court ensured the survival of many female children and placed women on a level playing field with men.

written by Kaynaat Rana

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Independent Thought v. Union of India - BareLaw · July 14, 2023 at 11:31 am

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