*Independent Thought v. Union of India (2017) 10 SCC 800 AIR 2017 SC 4904
Writ Petition (Civil) No. 382 of 2013 decided on 11/10/2017
(A) Penal Code (45 of 1860) , S.375 Excp.2— Constitution of India , Art.14, Art.15, Art.21— Constitutional validity – Sexual intercourse with girl below 18 years of age – Is rape irrespective of whether she is married or not – Exception 2 to S. 375 creating distinction between married girl child and unmarried girl child – Violative of Arts. 14, 15 and 21 – It be read as ‘Sexual intercourse or sexual acts by man with his own wife, wife not being 18 years, is not rape’.
Protection of Children from Sexual Offences Act (32 of 2012) , S.6, S.42A— Interpretation of Statutes – Harmonious and purposive construction.
Sexual intercourse with girl below 18 years of age is rape regardless of whether she is married or not. Exception creates unnecessary and artificial distinction between married girl child and unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. Artificial distinction is arbitrary and discriminatory and is definitely not in best interest of girl child. Artificial distinction is contrary to philosophy and ethos of Article 15(3) of Constitution as well as contrary to Art. 21 of Constitution and our commitments in international conventions. It is also contrary to philosophy behind some statutes, bodily integrity of girl child and her reproductive choice. What is equally dreadful, artificial distinction turns blind eye to trafficking of girl child and surely each one of us must discourage trafficking which is such horrible social evil. Existence of Art. 21 of Constitution gives fundamental right to girl child to live life of dignity.Documentary material placed before Supreme Court clearly suggests that early marriage takes away self esteem and confidence of girl child and subjects her, in sense, to sexual abuse. Under no circumstances can it be said that such girl child lives life of dignity. Right of girl child to maintain her bodily integrity is effectively destroyed by traditional practice sanctified by IPC. Her husband, for purposes of Section 375 of IPC, effectively has full control over her body and can subject her to sexual intercourse without her consent or without her willingness since such activity would not be rape. Anomalously, although her husband can rape her but he cannot molest her for if he does so he could be punished under provisions of IPC.
It appears therefore that different and irrational standards have been laid down for treatment of girl child by her husband and it is necessary to harmonize provisions of various statutes and also harmonize different provisions of IPC interse.(Para 1, 88)
Exception 2 to Section 375 IPC insofar as it relates to girl child below 18 years is liable to be struck down on following grounds:-
(i) it is arbitrary, capricious, whimsical and violative of rights of girl child and not fair, just and reasonable and, therefore, violative of Articles 14, 15 and 21 of Constitution of India;
(ii) it is discriminatory and violative of Article 14 of Constitution of India and;
(iii) it is inconsistent with provisions of POCSO, which must prevail. Therefore, Exception 2 to Section 375 IPC is read down as follows: ‘Sexual intercourse or sexual acts by man with his own wife, wife not being 18 years, is not rape’. It is, however, made clear that this judgment will have prospective effect.(Para 195)
There is apparent conflict or incongruity between provisions of IPC and POCSO Act. Rape of married girl child (girl child between 15 and 18 years of age) is not rape under IPC and therefore not offence in view of Exception 2 to Section 375 thereof but it is offence of aggravated penetrative sexual assault under S. 5(n) of POCSO Act and punishable under Section 6 of that Act. This conflict or incongruity needs to be resolved in best interest of girl child and provisions of various complementary statutes need to be harmonized and read purposively to present articulate whole.
Scope and amplitude of two significant pro-child statutes may now be examined in light of law laid down by Supreme Court including Ss. 5 and 41 of IPC. Cursory reading of JJ Act gives clear indication that girl child who is in imminent risk of marriage before attaining age of 18 years of age is child in need of care and protection. It cannot be said with any degree of rationality that such girl child loses her status as child in need of care and protection soon after she gets married. JJ Act provides that efforts must be made to ensure care, protection, appropriate rehabilitation or restoration of girl child who is at imminent risk of marriage and therefore child in need of care and protection. If this provision is ignored or given go by, it would put girl child in worse off situation because after marriage she could be subjected to aggravated penetrative sexual assault for which she might not be physically, mentally or psychologically ready. Intention of JJ Act is to benefit child rather than place her in difficult circumstances. Contrary view would not only destroy purpose and spirit of JJ Act but would also take away importance of Art. 15(3) of Constitution. Surely, such interpretation and understanding cannot be given to provisions of JJ Act. Similarly, provisions of POCSO Act make it quite explicit that dignity and rights of child below 18 years of age must be recognized and respected. Prima facie it might appear that since rape is offence under IPC (subject to Exception 2 to S. 375) while penetrative sexual assault or aggravated penetrative sexual assault is offence under POCSO Act and both are distinct and separate statutes, therefore there is no inconsistency between provisions of IPC and provisions of POCSO Act. However fact is that there is no real distinction between definition of rape under IPC and definition of penetrative sexual assault under POCSO Act. There is also no real distinction between rape of married girl child and aggravated penetrative sexual assault punishable under Section 6 of POCSO Act. Additionally, punishment for respective offences is same, except that marital rape of girl child between 15 and 18 years of age is not rape in view of Exception 2 to Section 375 of the IPC. In sum, marital rape of girl child is effectively nothing but aggravated penetrative sexual assault and there is no reason why it should not be punishable under provisions of IPC.Therefore, it does appear that only notional or linguistic distinction is sought to be made between rape and penetrative sexual assault and rape of married girl child and aggravated penetrative sexual assault. There is no rationale for this distinction and it is nothing but completely arbitrary and discriminatory distinction.(Para 74 94 95 96 98)
Merely because child marriages have been performed in different parts of country as part of tradition or custom does not necessarily mean that tradition is acceptable one nor should it be sanctified as such. Times change and what was acceptable few decades ago may not necessarily be acceptable today. There is therefore, no doubt that impact and effect of Exception 2 to S. 375 of IPC has to be considered not with blinkered vision of days gone by but with social realities of today. Traditions that might have been acceptable at some historical point of time are not cast in stone. If times and situations change, so must views, traditions and conventions.(Para 83 86)
On complete assessment of law and documentary material, it appears that there are really five options before Supreme Court: (i) To let incongruity remain as it is – this does not seem viable option to us, given that lives of thousands of young girls are at stake; (ii) To strike down as unconstitutional Exception 2 to Section 375 of IPC – in present case this is also not viable option since this relief was given up and no such issue was raised; (iii) To reduce age of consent from 18 years to 15 years – this too is not viable option and would ultimately be for Parliament to decide;(iv) To bring the POCSO Act in consonance with Exception 2 to Section 375 of IPC – this is also not a viable option since it would require not only retrograde amendment to POCSO Act but also to several other pro-child statutes; (v) To read Exception 2 to Section 375 of IPC in purposive manner to make it in consonance with POCSO Act, spirit of other pro-child legislations and human rights of married girl child. Being purposive and harmonious constructionists, this is only pragmatic option available. Therefore,there is no other option but to harmonize system of laws relating to children and require Exception 2 to Section 375 of IPC to now be meaningfully read as: ‘Sexual intercourse or sexual acts by man with his own wife, wife not being under eighteen years of age, is not rape.'(Para 105)
When girl is compelled to marry before she attains age of 18 years, her health is put in serious jeopardy. As is evident from various reports referred to above, girls who were married before age of 19 years are likely to suffer medical and psychological problems. 15 or 16 year old girl, when forcibly subjected to sexual intercourse by her ‘husband’, undergoes trauma, which her body and mind is not ready to face. Girl child is also twice as more likely to die in child birth than grown up woman.Least, that one would expect in such situation, is that State would not take defence of tradition and sanctity of marriage in respect of girl child, which would be totally violative of Arts. 14, 15 and 21 of Constitution. Therefore, Exception 2 to Section 375 IPC is arbitrary since it is violative of principles enshrined in Arts. 14, 15 and 21 of Constitution of India. When State on one hand, has, by legislation, laid down that abetting child marriage is criminal offence, it cannot, on other hand defend this classification of girls below 18 years on ground of sanctity of marriage because such classification has no nexus with object sought to be achieved. Therefore, also Exception 2 insofar as it relates to girls below 18 years is discriminatory and violative of Art. 14 of Constitution. One more ground for holding that Exception 2 to Section 375 IPC is discriminatory is that this is only provision in various penal laws which gives immunity to husband. Husband is not immune from prosecution as far as other offences are concerned. Therefore, if husband beats girl child and has forcible sexual intercourse with her, he may be charged for offences under Ss. 323, 324, 325 IPC etc. but he cannot be charged with rape. This leads to an anomalous and astounding situation where husband can be charged with lesser offences, but not with more serious offence of rape.As far as sexual crimes against women are concerned, these are covered by Ss. 354, 354A, 354B, 354C, 354D of IPC. These relate to assault or use of criminal force against woman with intent to outrage her modesty; sexual harassment and punishment for sexual harassment; assault or use of criminal force to woman with intent to disrobe; voyeurism; and stalking respectively. There is no exception clause giving immunity to husband for such offences. Domestic Violence Act will also apply in such cases and husband does not get immunity.There are many other offences where husband is either specifically liable or may be one of accused. Husband is not given the immunity in any other penal provision except in Exception 2 to Section 375 IPC. It does not stand to reason that only for offence of rape husband should be granted such immunity especially where ‘victim wife’ is aged below 18 years i.e. below legal age of marriage and is also not legally capable of giving consent to have sexual intercourse. Exception 2 to Section 375 IPC is, therefore, discriminatory and violative of Art. 14 of Constitution of India, on this count also. Discrimination is absolutely patent and, therefore, Exception 2, insofar as it relates to the girl child between 15 to 18 years is not only arbitrary but also discriminatory, against the girl child.(Para 179 183 184 185)
(B) Constitution of India , Art.14— Constitutionality of Law – Powers of Court – Normally Courts should raise presumption in favour of impugned law – However, if law is discriminatory, arbitrary or violative of fundamental rights –
SC4908Then Court may either strike down law or may read down law in such manner that it falls within four corners of Constitution.
Principle is that normally Courts should raise presumption in favour of impugned law; however, if law under challenge violates fundamental rights of citizens, law is arbitrary, or is discriminatory, Courts can either hold law to be totally unconstitutional and strike down law or Court may read down law in such manner that law when read down does not violate Constitution. While Courts must show restraint while dealing with such issues, Court cannot shut its eyes to violations of fundamental rights of citizens. Therefore, if legislature enacts law which is violative of fundamental rights of citizens, is arbitrary and discriminatory, then Court would be failing in its duty if it does not either strike down law or read down law in such manner that it falls within four corners of Constitution.(Para 166)