The case challenges Exception 2 to Section 375 of the IPC to the extent that it permits forced sexual intercourse within marriage by a husband with a minor wife between the ages of 15-18, as the same is violative of Articles 14,15 and 21 of the Constitution.
Section 375 of the Indian Penal Code was amended by the Criminal Law Amendment Act, 2013 to raise the age of consent to 18 ( Section 375 Sixthly), bringing the law in consonance with all other statutes where child is recognised to be a person below the age of 18, these being the Juvenile Justice (Care and Protection of Children) Act, 2012, the Protection of Children from Sexual Offences Act, 2012, and Prohibition of Child Marriage Act,2006.
Further, under the Prohibition of Child Marriage Act, 2006 a marriage contracted between two parties where either of them is a minor, i.e. below the age of 18 in case of girls and 21 in case of boys, is declared voidable and can be nullified at the instance of the contracting party who is a minor at the time of the marriage on attaining majority. There is therefore seen to be a statutory consensus on the legal age of consent being 18 years and any one below the said age being a child.
However, under Exception 2 to Section 375 of the IPC, “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape”.
The practice of child marriage is a nationwide concern as it amounts to a gross violation of human rights, depriving the child of their right to life, equality and dignity and the autonomy over personal decisions. As per the National Family Health Survey 4 (2015-2016) a total of 17.5% of women in the urban areas and 31.5% women in the rural areas are married before the age of 18, showing a considerably high number of child brides despite legal measures to combat the evil by way of enactment of the Prohibition of Child Marriages Act, 2006, which too only recognises these marriages as voidable and not void ab initio. The impact is considerably greater in the case of a girl child, for they have far reaching physical, psychological and emotional consequences on the development and well-being of the minor girl who are more vulnerable to sexual, reproductive and domestic violence.
Exception 2 under the IPC in exempting sexual acts of the husband from criminal liability even where the girl is a minor, denied any protection in law within marriage, despite a very real link between child marriage and sexual or intimate partner violence.
The present writ petition has been filed by Independent Thought, a voluntary organisation involved with the issue of child rights seeking a declaration that Exception 2 to Section 375 of the Indian Penal Code violates Articles 14, 15 and 21 of the Constitution to the extent that fixes a lower age of consent and permits forced sexual intercourse by the husband with a girl who is between the ages of 15 to 18.
The petition was listed for hearing before a Bench of Justices Madan B. Lokur and Deepak Gupta on 10.08.2017 on which date the Supreme Court sought recent data on the health and consequences status of girls married between the ages of 15-18 as well as the number of Child Marriage Prohibition Officers appointed under the Prohibition of Child Marriage Act, 2006. Consequently, on 28.08.2017, an application for Intervention was filed on behalf of the Child Rights Trust, a non-governemnetal organisation working to secure Every Right for Every Child.
The petitioner and intervenor have argued that the classification between married and unmarried minor girls for the purpose of sexual violence bears no rational nexus to the object of the Section and is further contrary to the obligations of the state to protect the right of the child, both under Article 21 as well as under International Conventions to which India is a party.
In response, the argument of the State is that the parliament has consciously fixed the age at 15 recognising societal needs and practices, submitting that even after the coming into force of the PCMA, child marriages continue to be prevalent, particularly in rural and tribal areas. Recognising that the practice is an abhorrent one and minor girls need protection from sexual violence within such voidable marriages, the Union has argued that the only recourse is through the amendment of the Code.
Copy of the Judgment
Written Submissions on behalf of the Union of India
Written Submissions on behalf of the Petitioner-Independent Thought
Application for Intervention on behalf of the Child Rights Trust
Affidavit filed by the Union of India
Counter Affidavit filed by the Union of India
Child Marriage & the Marital Rape Exception in IPC : Judgement delivered
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