Independent Thought vs. Union of India

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CASE NAME	Independent Thought vs. Union of India
CITATION	(2017) 10 SCC 800
DATE OF JUDGMENT	10^th October, 2017
CASE NO	WP (C) 382/2013
CASE TYPE	Writ Petition under Article 32
PETITIONER	Independent Thought
RESPONDENT	Union of India
BENCH	Deepak Gupta J, M.B. Lokur J
STATUTES REFERRED	The Constitution Of IndiaIndian Penal Code, 1860Juvenile Justice (Care and Protection of Children) Act, 2015.Child Marriage Restraint Act, 1929

INTRODUCTION

In India a lot of child marriages have taken place from a long period of time. During the British era child marriage was outlawed through Child Marriage Restraint Act, (1929) according to which if a marriage is solemnized of a girl below the age of 14 and of a boy below the age of 18 it will be prohibited. After independence in the year 1949 the legal age for marriage was increased to 15 for girls and was once again revised and changed to 18 for girls and 21 for boys in the year 1978 but what about the age of consent for sexual intercourse.

The exception clause of section 375 [RAPE] stated that – Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. This exception clearly violated the bodily dignity of the girls who had underage marriage. There was a dire need to address the intricate intersection between the legal age of marriage and the age of consent for sexual intercourse to protect girls from sexual exploitation and sexual abuse.
The case of Independent Thought v. Union of India, 2017, marks a watershed moment in Indian jurisprudence as it was in this case that the Supreme Court of India made a ground-breaking ruling, affirming the rights of every girl to protect her body and making rape within underage marriages a criminal offense.

FACTS OF THE CASE

A registered NGO called Independent Thought, focused on safeguarding children’s rights, particularly young girls’, was established on August 6, 2009.

In 2013, this child rights organization, Independent Thought, initiated a legal action by filing a public interest writ petition, W.P. (C) 382/2013, in the Supreme Court under Article 32 of the Constitution.

Their petition aimed to challenge the disparity between the permissible age for marriage and the age at which one can consent to sexual intercourse. They challenged Exception 2 in Section 375 of the Indian Penal Code (IPC), which excludes sexual relations with a wife aged 15-18 from being considered as rape, irrespective of her consent.

Independent Thought persuaded legal action to affirm that Exception 2 in Section 375 of the IPC violated Constitutional Articles 14, 15, and 21. Their primary goal was to correct this inequality and safeguard the fundamental rights of individuals, particularly underage girls, from the potential exploitation arising due to this legal provision.

ISSUES RAISED

Does engaging in sexual activity between a man and his wife when she’s a girl aged between 15 and 18 amount to rape?
Is the Exception 2 in Section 375 of the Indian Penal Code (IPC) considered unjustifiable?
Is Exception 2 in Section 375 of the IPC arbitrary

ARGUMENTS BY THE PETITIONER

The petitioner argued that according to Section 375 of the IPC, any consensual sexual involvement with a girl under 18 is classified as rape, hence, the exception in Section 375, which offers immunity from rape based solely on marriage, should be removed. The petitioner opposed the notion that being a husband automatically grants the right to engage in sexual activity without considering the girl’s consent or age.

It was emphasized by the petitioner that a girl’s marriage does not imply automatic consent for sexual relations or any form of conjugal contact with her spouse. This contention aimed to highlight that a marriage contract should not override a girl’s right to consent to sexual activity, emphasizing the importance of considering her individual consent.

The petitioner argued that Exception 2 within Section 375 wasn’t just biased but also went against Article 15(3), which is meant to provide extra protections for women and children. Instead of ensuring these protections, this rule put the girl child at a notable disadvantage, conflicting with the intended beneficiaries described in Article 15(3).

It was contended that the difference in how the law treats sexual activity based solely on marital status and age was evident. Specifically, distinguishing between a married girls aged 15 to 18 engaging in sexual activity, not labelled as rape, and an unmarried girl under 18 involved in the same activity, which is deemed as rape, showcased apparent bias and discrimination. This underscored the inconsistency in the legal treatment of sexual conduct based on marital status and age.

They also contended that in Exception 2 of Section 375 within the IPC, the age defining a married woman is 15 years, while in all other laws, a girl’s legal age is recognized as 18 years. This discrepancy was deemed arbitrary since it unfairly and unjustly disadvantages the rights of underage girls.

ARGUMENTS BY THE RESPONDENTS

The respondent countered the arguments presented by the petitioner’s counsel by asserting that the educational and economic progress in the country is regressing and not progressing positively. As a result, they chose to uphold the age of 15 years, as specified in Exception 2 of Section 375 of the IPC, aiming to safeguard the rights of both husband and wife concerning criminalizing sexual activities between them.

The respondent argued that despite being illegal, child marriage remains a prevalent social reality in the country. Therefore, if a marriage is established at the age of 15 years, it should not automatically lead to the husband being charged with rape, citing its prevalence as a traditional practice.

The respondent also stated that once a girl child gets married, she has inherently provided consent, either explicitly or impliedly, for sexual intercourse with her husband.

The respondent highlighted that Exception 2 of Section 375 in the IPC exempts husbands from rape charges. Instead, if a husband assaults a minor girl and engages in sexual activity, he can face charges under IPC Sections 323, 324, and 325. Additionally, they referenced the Constitution’s provision for safeguarding children under 18 in immediate peril, citing the Juvenile Justice (Care and Protection of Children) Act, 2015.

The Law Commission of India (LCI) put forth a proposal in its 172nd Report to increase the wife’s age to 16 years. However, this idea was set aside in consideration of the need to formulate laws that avoid adverse impacts on any specific group or community. Acknowledging social and historical traditions, the recommendation was to maintain the 15-year limit in Exception 2 to Section 375 of the IPC.

JUDGEMENT

After reviewing the case’s details and pertinent aspects of the petition, the Court delivered a verdict on Exception 2 of Section 375, labelling it unconstitutional due to violations of Article 14 and 21. The exception conflicted with laws recognizing individuals under 18 as children while allowing non-consensual intercourse with wives aged 15-18. Seeking alignment with legal norms and bolstering women’s empowerment, the Court reinterpreted the exception, deeming intercourse with wives under 18 as rape.

Emphasizing adherence to legal standards and advancing women’s welfare, the Court directed its focus on harmonizing the law with established age limits and concentrated on reshaping the law to better represent legal standards and further the goals of women’s empowerment.

ANALYSIS
As it was established that Exception 2 in Section 375 of the IPC safeguards individuals engaging in sexual activity with their spouse, provided the spouse is above 15 years old. Consequently, regardless of consent, husbands are protected from rape accusations in such instances. However, defending the tradition of child marriage goes against constitutional provisions (Articles 14, 15, and 21) as it harms the physical and mental well-being of girls under 15 coerced into sexual activity by their spouses. Any rule or act violating the constitution would therefore be invalidated or declared unconstitutional, as it was done in the present case.

Justice Madan B. Lokur emphasized that regardless of different circumstances like being a street child, surrendered, abandoned, or adopted, a child is always considered a child. Similarly, whether a child is married, unmarried, divorced, separated, or widowed, they are still considered a child. Hence, it would be unfair if a rule or law is distinct only because a girl child is married and above 15 years old. The aim of the judgment was to ensure fairness and equality between men and women, avoiding any form of discrimination.

CONCLUSION

Independent Thought took a significant initiative by filing a petition that led to a historic ruling by the Supreme Court of India on October 11, 2017. This decision upheld the rights of every girl to bodily dignity and made rape within underage marriages a criminal offense. By striking down this exception, the court granted female children the chance to live in improved, more liberated, and safer surroundings. Through this verdict, the court safeguarded the lives of numerous female children and established equality between women and men.

REFERENCES

DECLARATION

This Article is written by Fathima Zohra, student of Kristu Jayanti College of Law, Intern at Legal Vidhiya.

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