Supreme Court Landmark Judgment- Independent Thought vs. Union of India on October 11, 2017
Question- Does sexual intercourse of a man with his wife, who is between the age of 15 to 18, amount to rape?
Answer – Exception 2 of Section 375 of IPC says NO to the above.
FACTS OF THE CASE :
Petitioner: Independent Thought, registered as a society on 6th August 2009, works for the cause of Child Rights. The petitioner is of the opinion that sexual intercourse, regardless of consent or otherwise, between a man and his child bride (between the age of 15 and 18 years), amounts to rape. This is broadly on the basis of the following:
- All statutes in India mention that a female below 18 years of age is a child and sexual intercourse with any such individual amounts to rape, irrespective of consent.
- However, because of the existence of exception 2 of section 375 of IPC, if a girl below 18 years is married and has sexual intercourse with the husband, it does not amount to rape. It is further mentioned that even if the sexual activity is non-consensual, it doesn’t amount to rape.
- Thus, the husband of a girl below 18 years of age is not penalized under law for having non-consensual sexual intercourse with her, before she attains the age of 18.
Child Marriage W.P. 382 of 2013 Restraint Act, 1929 provides that marriage of a girl below 18 years of age is a punishable offence. Thus:
- The petitioner claims that if marriage of a woman before attaining the age of 18 is a punishable offence, sexual intercourse with a girl (child) below 18 years of age should also be prohibited.
- The petitioner appeals to the court that Indian Penal Code must observe the inconsistency of minimum age that these two provisions in Restraint Act,1929 and Exception 2 of Section 375 of IPC and amend the minimum age for consensual marital sexual intercourse to 18 years for girls.
ISSUES OF THE CASE-
Since 1860, the “Age of Consent” under Sec 375, the age mentioned in exception 2 of Section 375 and the “Minimum Age of Marriage” under Child Marriage Restraint Act, 1929 have been the same.
Refer to the table given below to understand the trend:
|Year||Age of Consent
(Clause 5 of Section 375, IPC)
(Exception 2 of Sec. 375, IPC)
|Minimum Age of Marriage-Women
(Child Marriage Restraint Act, 1929)
|1860||10 years||10 years||–|
|1891||12 years||12 years||–|
|1925||14 years||13 years||–|
|1929||14 years||13 years||14 years|
|1940||16 years||15 years||15 years|
|1978||16 years||15 years||18 years|
An observation of the above pattern indicates that the minimum age of consent, minimum age in exception 2 of Sec. 375 of IPC and the minimum age of marriage have been the same through the years. However, the latest amendment made in 1978 shows otherwise. In other words, it criminalizes the marriage of any woman below the age of 18 but does not criminalize any sexual activity between a man and his wife, who is between the age of 15 and 18.
The petitioner presented their argument on the following 3 grounds:
- Any sexual activity with a female below the age of 18 amounts to Rape is defined as “any acts like penetration by penis, or any object or any part of body to any extent, into the vagina, mouth, urethra or anus of a woman or making her to do so with another person or applying of mouth to sexual organs without the consent or will of the woman constitutes the offence of rape.”
- There is a clear-cut bias that exists towards married women between 15 and 18 years of age in the context of rape. Because of their marital status, the rape tag is not extended towards them; whereas, sexual activities with any woman under 18 years of age(regardless of consent) are a punishable offence and are understood as rape. The law had so far negated any such thing as “marital rape” of women between 15 and 18.
- Any woman below 18 years of age is said to have not attained enough emotional, mental and physical stability, which is why the minimum age for voting, for entering into a contract, and not just marriage or sex. The reason why minimum age for marriage for women was set to 18 was that it not only has adverse emotional effects but also medical concerns associated with it. Child-marriage is said to be a two-way sword because it not only impedes the development of the woman, but also leads to ill-health of their children and neonatal deaths.
Finally, the Court found relevant, the many anomalies associated with child marriage and consequential marital rape and how married (minor) women between 15 and 18 were being deprived of their right to life against marital rape. It was finally held that this law was inhibiting the overall well-being of the girl child and marital rape exception was amended in the best interests of the women.