Independent thought v. Union of India 2017: Case Comment

INDEPENDENT THOUGHT V. UNION OF INDIA

Author: Ms. Deepsi Rawat, Law College Dehradun.

In the Supreme Court of India Civil Original Jurisdiction

Petitioner: Independent Thought, A Registered Society.

Respondents: Union of India.

Bench: Justice Madan B. Lokur and Justice Deepak Gupta.

Decided on: 11^th October, 2017.

FACTS OF THE CASE

1. The Criminal Law (Amendment) Act, 2013 increased the age of consensual sexual intercourse from 16 years to 18 years mentioned under Section 375 of the Indian Penal Code, 1860.
2. However, the Exception 2 to the provision Section 375 did not criminalize non-consensual sexual intercourse by a husband with his wife if she is above the age of fifteen.
3. Prevention of children from sexual offences act, 2012 under section 6 penalizes rape with a child below 18.
4. The Petitioner, Registered Society working is the areas of child rights, filed a petition in the Supreme Court of India under Article 32 of the Constitution, 1950.
5. The petitioners filed the petition in public interest stating that Exception 2 to Section 375 violates the rights of the girl child between the age of 15-18 years.

PROVISIONS/STATUTE IN QUESTION

1. Section 375 Indian Penal Code, 1860.
2. Exception 2 of Section 375 Indian Penal Code, 1860.
3. Section 6, Prevention of children from sexual offences act, 2012.

ISSUES

1. Whether non-consensual sexual intercourse with a minor child by her husband amounts to rape under Section 375 of the Indian Penal Code?
2. Whether Exception 2 of Section 375 is a violation of Article 14, Article 15(3), and Article 21 of the Constitution of India?

CONTENTIONS/ARGUMENTS

ARGUMENTS ADVANCED BY PETITIONERS

1. According to the petitioner, Section 375 of the IPC prescribes the age of consent for sexual intercourse as 18 years meaning thereby that any person having sexual intercourse with a girl child below 18 years of age would be statutorily guilty of rape even if the sexual activity was with her consent.[1]
2. Nothing has been achieved by allowing the husband of a girl child the authority to have sexual intercourse with her and it does not have any reasonable nexus with the status of the marriage.
3. Merely because a girl child is married prior to the age of 18 does not mean she is mentally and physically capable and competent to get involved in sexual activities.
4. Exception 2 of Section 375 puts the girl child at a great disadvantage and is violative of Article 15(3) of the Constitution of India.

ARGUMENTS ADVANCED BY DEFENDANTS

1. The child marriages in India are currently prevalent and are just voidable at the instance of the parties but not void. Therefore, considering the prevailing conditions it is essential that Exception 2 should be present for the interest of the child.
2. the National Family Health Survey – 3 (of 2005) in which it is stated that 46% of women in India between the ages of 18 and 29 years were married before the age of 18 years.
3. Consummation of a marriage may involve the consent of the bride either by express or through implication therefore, penalizing the husband would be wrong.

JUDGMENTS

1. Justice Madan B. Lokur observed that the distinction created by Section 375, Exception 2 between an unmarried and married child is unnecessary and arbitrary in nature and not in the interest of a child and is violative of Article 15(3) of the Constitution of India.
2. The National Charter for Children, 2003 prohibits child marriage and in pursuance of this Charter, the 2013 National Policy for Children was formulated which defined a child as one below the age of 18 years.
3. The 84th Law Commission Report, 1980 also emphasized the need for increasing the age of sexual intercourse with a girl to 18 years.
4. The Protection of Children from Sexual Offences Act, 2013 penalizes sexual intercourse with a child below the age of 18 years. This provision and Exception 2 of Section 375 are in contradiction with each other. The general rule is that special provision has an overriding effect over the general provisions hence, the Protection of Children from Sexual Offences Act, 2013 overrides Exception 2 of Section 375 of Indian Penal Code.
5. Under the Juvenile Justice (Care and Protection) Act, 2015 a child is defined as a person below the age of 18 years. Further, it provides that a child married under the age of 18 is a child in need of care and protection.
6. The most obvious and appropriate resolution of the conflict has been provided by the State of Karnataka – the State Legislature has inserted sub-Section (1A) in Section 3 of the PCMA (on obtaining the assent of the President on 20th April 2017) declaring that henceforth every child marriage that is solemnized is void ab initio.
7. A women’s right to privacy, dignity, bodily integrity and right to reproductive choices should be respected.
8. Rape is a heinous crime that violates the bodily integrity of a girl child, causes trauma and destroys her freedom of reproductive choice.

CASE LAW REFERRED

1. Yusuf Abdul Aziz v. State of Bombay[2]
2. Suchita Srivastava v. Chandigarh Administration[3]
3. Selvi v. State of Karnataka[4]
4. Devika Biswas v. Union of India[5]
5. Bodhisattwa Gautam v. Subhra Chakraborty[6]
6. State of Punjab v. Gurmit Singh[7]

COMMENTS

1. The judgment has rightly addressed the area of child rights which was though evident to the community but, yet failed to be mended by the Legislature. Referring to various statutes and conventions the judges have taken a step to ensure that the girl child, who fails to bring forth her plight owing to social traditions which are derogatory to their interest, is provided a future that will maintain her bodily dignity. 
2. The rights which a child bride was deprived of are recognized in the judgment and have ensured the child her right to dignified life and right of choice of reproduction. The judgment while touching the point of sexual intercourse with a married girl child has helped in the recognition of the plight of the girls who fall prey to the traditional practice of child marriage.
3. The Court, however, refrained from addressing the conditions of married girls above 18 years. In the opening text of the judgment, Justice Madan B. Lokur addresses that the judges do not deal with the conditions of women above 18 years. The judgment turns blind eye to the women above 18 who are equally in the threat and victim of marital rape.
4. Directions could have been provided to ensure that there is a fruitful implementation of the judgment as there was a girl child who fell victim to the tradition of child marriage even when there were proper statutory regulations to keep a check on them. There should have been a mechanism to ensure that there is proper propagation of the rights entrusted to the girl child as well as to ensure that the judgment does not remain a mere letter but, is seems to be implemented.

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[1] Independent Thought v. Union of India

[2](1954) SCR 930

[3] (2009) 9 SCC 1

[4] (2010) 7 SCC 263

[5](2016) 10 SCC 726

[6] (1996) 1 SCC 490

[7] (1996) 2 SCC 384