The Indian Supreme Court, presided over by two judges, has ruled that Exception 2 to Section 375 of the Indian Penal Code, 1860, was contrary to Article 15(3) and 21 of the Constitution as well as India’s commitments in international conventions. This exception reads that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”. This allows a man to rape his child wife if she is between the ages of 15 and 18. However, the Court did not go as far as to address laws which allow for marital rape of a woman about the age of 18.
The case was brought by the Public Interest group “Independent Thought” before the Supreme Court, filing a petition under Article 32 of the Constitution in public interest with a view to draw attention to the violation of the rights of girls who are married between the ages of 15 and 18 years.
India’s Penal code has already outlawed an adult having sexual intercourse with a child under the age of 18. This did not however, extend to married children between the age of 15 and 18 due to the distinction provided by Exception 2 to S. 375 of the IPC.
Judge Madan B. Lokur described the distinction as “artificial” when setting out his judgement, noting that the distinction was discriminatory and not in the best interests of the child. He further went on to state that the exception was a violation of the bodily integrity of the child and her reproductive choice, and that it turns a blind eye to the trafficking of young girls for child brides. Judge Madan B. Lokur noted that the exception was contrary to the beneficial intent of Article 15(3) of the Constitution which enables Parliament to make special provision for women and children, and in fact, put married children in a distinctly disadvantaged position, considering marital rape is not a crime under the Indian Penal Code. This would mean that not only is a married girl between the ages of 15 and 18 unprotected from statutory rape, but also from being forced to have sexual intercourse with her husband. Judge Madan B. Lokur concluded his judgement by stating that there was no option but to harmonise the system of laws relating to children. His judgement required that Exception 2 to Section 375 of the IPC would now state that: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape."
Judge Deepak Gupta gave a separate, though concurring judgement. In his judgement he pointed out that child marriage had been outlawed by the Prohibition of Child Marriage Act, 2006. However, he noted that this had been breached with impunity due to the lack of deterrent, and that the entire Act needed a re-assessment. Judge Deepak Gupta also pointed out the contradictions between the 2006 Act, and the Dissolution of Muslim Marriages Act, 1939, and the Hindu Marriage Act, 1955, all of which set out different conditions for the age of which a marriage was considered valid. The judge further referenced the Protection of Children from Sexual Offences Act, 2012, which Exception 2 is also in contravention to. He goes on to concur with Judge Madan B. Lokur that the exception is highly discriminatory towards female children, and that a man who has sex with, or indeed marries a girl under the age of 18 is committing a criminal offence.
The judges agreed that the Exception was to be struck down on three grounds: “i) it is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Article 14, 15 and 21 of the Constitution of India;(ii) it is discriminatory and violative of Article 14 of the Constitution of India and (iii) it is inconsistent with the provisions of POCSO, which must prevail.”
For the judgement click here. For further commentary on the case click here and here .