Author: Anisha Vatsa, Banasthali Vidyapith

The case-independent thought v Union of India and Anr revolves around the exception of rape within child marriage. The Indian Supreme Court examined whether a man's sexual relations with his wife, a girl between the ages of fifteen and eighteen, would constitute rape in its ruling. Through the Criminal Law Amendment Act, 2013 section 375 of the Indian Penal Code (IPC) was amended in the age of consent for sexual intercourse was increased from 16 years to 18 years. Due to this it harmony with all the other acts (protection of Children from sexual offences act,2012, Juvenile Justice Care and Protection Act,2012 and Prohibition of Child Marriage Act,2006) where an individual under the age of 18 is acknowledged as a child. Exception 2 of section 375, which provided an exception against rape if the sexual intercourse is  done by a man with his wife who is 15 or above was permitted.

A petition before the Supreme Court of India was filed in the year 2013 by Independent Thought, a national human rights organisation that works in the human rights field to protect the child from any kind of exploitation and abuse. The petition challenged the constitutionality of the exception mentioned in section 375 of IPC which permits sexual intercourse by a husband with his wife(between the age 15 to 18 years).   

• Despite the age 18 fixed by other statutes is the expectation of ipc valid 

• Exception 2 in section 375 of ipc violates article 21 (consent of age kept lower for married girls) 

• Exception 2 in section 375 of ipc violates article 14 ans 15 (discrimination regarding sexual violence in case of married and unmarried girls)

Petitioner side: The petitioner argued that section 375 exception 2 of IPC recognized 18 as the age of consent for sexual intercourse in the case of unmarried women but in the same section the said age was lowered for the married minor women. It was arbitrary and discriminatory as it created a distinction between the rights of married and unmarried girl children. This showed the infringement of Article 14 and Article 21, as well as it is contrary to the beneficial intent of Article 15(which gives Parliament to make special provisions for women and children). 

Defendant side:The defendant i.e. state said that although illegal but in various surveys, the married women in the society still get married before the age of 18, hence criminalising the consummation of marriage won’t be appropriate. It also argued that according to the society and the traditions still present intercourse between the husband and wife is expected.

A verdict was delivered on 11th October 2017 by a 2 bench judge. They agreed with the petitioner that exception 2 of section 375, IPC violated article 14 and did not create a reasonable classification. It infringed Article 21, the right to live a dignified life with basic autonomy and safety. It was also seen by the court that in other statutes [POSCO, The Prohibition of Child Marriage Act,2006 (PCMA) AND Juvenile Justice Act,2002(JJ Act)]  age of consent for sexual intercourse was recognised as 18 years. The court decided that exemption 2 had to be interpreted as meaning that only sex with a wife who was older than 18 was not regarded as rape in order to bring it into compliance with POSCO and fundamental rights (Articles 14, 15(3), and 21).It was also quoted by the court that the right to life also included the right to develop physically, mentally and economically as an independent self-sufficient female adult and considering the age of these females to be less than 18 years they may have a young childbirth.

Since the ruling was prospective, the marital rape exemption was read down. The court through this decision sought to address the consent law regarding the age factor. While this decision had been applauded and seen as a sent-in the marital rape exception, it remains embedded in the large objective of the regulation of female sexuality. It is important to note that in all its talk of the rights of the girls below age of 18 years, there are still a lot of steps left to take that should prevent child marriage today. A point that has to be well noted under this case is that it is a base that will help in future with other marital rape in which regardless of the age of the women amendments can be made and punishment for the same would also be declared. This case gives the shape to the change for the future.

This decision addressed many areas of internal conflicts and harmonised the legal framework. Under the juvenile justice act it highlighted that the married girls are classified as children in need of care and protection. They were entitled to take advantage of the safeguards under various acts made for their protection and welfare. Further the court rejected the fact made by the government that child marriage is a part of culture and tradition.