The petitioner in this case, Independent Thought v. Union of India, was a registered organisation dedicated to the protection of children’s rights, while the respondents were the Union of India and the National Commission for Women. The IPC’s Section 375 defines rape and includes a provision defining the age of consent at 18. Section 375, Exception 2, states that a husband may have non-consensual intercourse with his wife if she is between the ages of 15 and 18. The Supreme Court was asked to rule on the legitimacy and constitutionality of Exception 2 to Section 375 of the Indian Penal Code.The petitioner in this case, Independent Thought v. Union of India, was a registered organisation dedicated to the protection of children’s rights, while the respondents were the Union of India and the National Commission for Women. The IPC’s Section 375 defines rape and includes a provision defining the age of consent at 18. Section 375, Exception 2, states that a husband may have non-consensual intercourse with his wife if she is between the ages of 15 and 18. The Supreme Court was asked to rule on the legitimacy and constitutionality of Exception 2 to Section 375 of the Indian Penal Code.
The age of consent to sexual intercourse was raised from 16 to 18 in 2013 by the Criminal Law Amendment Act, which was enacted under Section 375 of the Indian Penal Code. However, there was an exception to this Section, namely, Exception 2, which allows a spouse to have non-consensual intercourse with a girl child (i.e., under the age of 18) if she is over the age of 15. The POCSO Act was passed in 2012, establishing an 18-year-old minimum age for consenting sex. Exception 2 ran counter to Section 3 of the POCSO Act, which makes penetrative sexual assault illegal.
Whether Exception 2 to Section 375 of the Indian Penal Code, 1860, insofar as it applied to girls aged 15 to 18, was void for infringing Articles 14, 15, and 21 of the Indian Constitution.
Exception 2 was arbitrary and discriminatory, according to the Petitioner, because it created an artificial distinction between the rights of married and unmarried girl children between the ages of 15 and 18. It was contended that this classification lacked a distinct goal and had no reasonable connection to the (unclear) goal of Section 375 of the IPC. As a result, Exception 2 went against the fundamental principles of Articles 14 and 21, as well as the beneficent objective of Article 15(3), which allowed Parliament to create specific provisions for women and children.
Furthermore, given that almost all Indian statutes, including Section 375 of the IPC, recognise a girl under the age of 18 as a child and punish sexual intercourse with a girl child under the age of 18, the Petitioner argued that the same legal position should be reflected in Exception 2 to Section 375 of the IPC, in order to protect the girl child’s right to bodily integrity and sexual autonomy. Additional privacy and physical and mental health concerns were addressed by the Intervenor (Child Rights Trust).
The Respondent-State maintained that, despite being illegal, child marriage was nonetheless a social reality in the country, and that Exception 2 was intended to preserve voluntary child marriages. Criminalizing these unions would target specific groups of people and their customs. The Respondent further claimed that by marrying, the girl child had given her consent to sexual intercourse with her husband, either expressly or impliedly.
The Division Bench while deciding whether a husband commits the offence of rape if he has sexual intercourse with her wife who is between 15-18 years of age, commented as follows:
The IPC’s Exception 2 creates an arbitrary distinction between a married girl kid and an unmarried girl child that has no rational connection. Both Article 15(3) and Article 21 of the Constitution prohibit the artificial distinction. There is no other provision in the penal code that grants the husband immunity. It also violates the female child’s bodily integrity and reproductive autonomy, and there are no provisions for dealing with girl child trafficking. As a result, it is arbitrary and discriminatory, putting the girl child’s best interests at risk.
From time to time, the parliament has raised both the marriage and consent ages. Currently, a girl kid under the age of 18 is not allowed to marry or grant permission. When all other laws raise the age of consent for a wife, Exception 2 becomes unreasonable, unjust, unfair, and violates the rights of the female child by keeping the age of consent for a wife at 15 years. As a result, it is arbitrary and should be ignored.
To be compatible with the constitution, exemption 2 should be interpreted as follows: “Sexual Intercourse or Sexual Acts by a man with his own wife, the wife not being 18 years, is not rape.”
In this decision, the Supreme Court evaluated whether sexual intercourse between a man and his wife, who is a girl between the ages of 15 and 18, constitutes rape. Despite the fact that Exception 2 to Section 375 of the IPC stated otherwise, the Supreme Court narrowed the scope of the exception and resolved the inconsistency between the IPC and the POSCO Act by raising the age of consent for marital sexual intercourse to 18 years in order to preserve and protect the human rights of married girl children. The Court took a purposeful approach and struck down Exception 2 of Section 375, IPC.
The Court found the Exception to be arbitrary and discriminatory under Articles 14 and 15, as well as a violation of Article 21 of the Constitution, because it created an unnecessary distinction between married and unmarried girls that had no rational connection to the Section’s goal. The Court also pointed out that the Exception ran counter to the framework formed by other pro-child legislation, such as POCSO, which would prevail as special legislation.
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