Independent Thought vs Union of India case involved a petition filed under Article 32 of Constitution of India in public interest with a view to give attention to the violation of the rights of girls who are married between 15 and 18 years of age. This was filed in view of Exception 2 of Section 375 IPC, which defines it as ‘sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape’.
Writ Petition (Civil) No. 382 of 2013
Hon’ble Justice Madan B. Lokur
Hon’ble Justice Deepak Gupta
DATE OF JUDGEMENT
11th October 2017
- Exception 2 of Section 375 of Indian Penal Code, 1860 read as:]
“Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”.
- Article 14, 15 and 21 of Constitution of India, 1950
FACTS OF INDEPENDENT THOUGHT VS UNION OF INDIA 2017
- That the petitioner is a society registered person from the year since 2009. He has been working for the children’s rights.
- The petitioner was accordingly in the view that Section 375 prescribes the age of consent for sexual intercourse was of 18 years means that if any person having sexual intercourse with a girl under 18 years of age that will be statutorily guilty of rape even if it was consensual act.
- That most of the statue in India recognize that a girl below 18 years is a child, and it is therefore the reason that person should be punished according to law for having sexual intercourse with a girl who is under 18 years of age.
- Therefore, according to Exception 2 of Section 375 of IPC if a girl child between the age of 15 and 18 years, her husband can have non-consensual sexual intercourse with her without being punished under the law with the only reason that she was married to him.
- Hence, the right of girl child to decline to the sexual intercourse with her husband has been taken away and act which is against her consent were not an offence under the law of IPC.
Whether the sexual intercourse between the husband and his wife being aged between 15 and 18 years considered rape?
Whether Exception 2 of Section 375 was considered discriminatory and violates Articles 14, 15, and 21 of the Constitution of India?
CONTENTION OF THE PARTIES
Petitioner- The Petitioner’s counsel argued that Exception 2 of Section 375 is discriminatory and contrary to Article 15(3) of the Constitution of India.
There is nothing much absolutely achieved by giving the husband of a girl child between 15 and 18 years of age to having sexual intercourse against her consent.
That forceful act of sexual intercourse with a wife aged between 15 and 18 years is also a violation of Human Rights as defined under Section 2(d) of the Protection of Human Rights Act, 1993 and under Section 3 of The Protection of Women from Domestic Violence Act, 2005
Respondent- The opposite counsel argued that child marriages are still prevalent in India and it is voidable only not void under The Prevention of the Child Marriages Act, so it is important to retain the age of 15 years under Exception 2 of Section 375 of IPC to give protection to husband and wife against criminalizing the sexual activity between them.
Child marriages are performed in different parts of states of the country as a tradition, so it must also respect that tradition.
That if the marriage is solemnized at 15 years of age according to the traditions, then it would not be the reason to punish the husband under the offence of rape.
That the counsel further added that after being getting married girl child consented to sexual intercourse with her husband by necessary implications.
RATIO OF THE INDEPENDENT THOUGHT VS UNION OF INDIA 2017
JUSTICE MADAN LOKUR:
- He stated that by taking survey from various legislations like Law Commission of India 172nd Report, Human Rights Council, Protection of Humans Rights Act, 1996, Juvenile Justice Act, 2015 it has been summarized that various statue referred a child is a person below 18 years of age who is entitled for protection of her human rights including the right to live with dignity and if she is unfortunately married while child she needs to be protected from domestic violence both physically and mentally as well as from sexual abuse.
- If the husband of girl child commits penetrative sexual assault when he has sexual intercourse with her, he is punishable by an offence under the act of POSCO.
- In this scheme of pro-child legislation, it is found that there is exception 2 of Section 375 IPC, which is not rape as defined under this exception. As a result, Article 15(3) of Constitution was inserted for eliminating this socio-economic backwardness of women to empower them, which could bring equality between men and women.
- Also that there is no doubt that woman’s right to make reproductive choice is also concluded as ‘personal liberty’ under Article 21 of Constitution of India.
- Rape is to be considered as a heinous crime as it causes the trauma and destroys her freedom of reproductive choice, which needs serious concern and deliberations. Therefore, there is a conflict between the provisions of IPC and POSCO Act.
- Therefore, rape of married girl child between age of 15 and 18 years is not an offence under IPC under the exception 2 of Section 375 but it is an offence of aggravated penetrative sexual assault under section 5(n) of POSCO Act and punishable under Section 6 of POSCO Act. Therefore, conflict will be solved in the best interest of a girl child.
JUSTICE DEEPAK GUPTA:
- He stated that in this petition; we are mainly concerned with Article 14 and 21 of the Constitution of India. It is clear from legislative history that person below 18 years of age is a child because a person is not fully developed and does not know about the consequences of his/her actions.
- He further added that is totally in the arc of Parliament that what should be the age of consent to be given under clause six of section 375 IPC and also in the hands of Parliament to decide what should be the legal age of marriage.
- He further opined his view and agreeing with the Justice Madan that when a girl child of 15 years of age forcibly subjected to sexual intercourse by her husband, which affects her body and mind, which is yet fully developed and undergoes for trauma.
- Hence, the State would not be taken as defense for the tradition and sanctity of marriage regarding girl child, which is totally violates Article 14, 15 and 21 of the Constitution of India. There are certain other aspects which make exception 2 of Section 375 IPC in so far as girl child deals with total discriminatory.
After considering facts of the case i.e. Independent thought vs union of India, and considering other things regarding the petition both the Judges concludes by giving separate judgments that Exception 2 of Section 375 of IPC as so far it relates to the girl child below 18 years of age is liable to be struck down under following reasons:
It is therefore arbitrary and a violation of the rights of a girl child which is not just reasonable and also the violations of Articles 14, 15, and 21 of the Constitution of India.
And it is inconsistent with the provisions of POSCO, which must prevail.
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