Independent Thought v. Union Of India And Another

Per Lokur, J.

Section 375 Exception 2 IPC

The issue before the Court in this case is limited to the question—whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape? The Court is not concerned here with regard to the marital rape of a woman who is 18 years of age and above.

(Paras 1 and 2)

Section 375 IPC defines “rape”. This section was inserted in IPC in its present form by an amendment carried out on 3-2-2013 and it provides that a man is said to commit rape if, broadly speaking, he has sexual intercourse with a woman under circumstances falling under any of the seven descriptions mentioned in the section. Clause ‘Sixthly’ of Section 375 makes it clear that if the woman is under 18 years of age, then sexual intercourse with her—with or without her consent—is rape. This is commonly referred to as “statutory rape” in which the willingness or consent of a woman below the age of 18 years for having sexual intercourse is rendered irrelevant and inconsequential. However, Exception 2 to Section 375 IPC provides that it is not rape if a man has sexual intercourse with a girl above 15 years of age and if that girl is his wife. In other words, a husband can have sexual intercourse with his wife provided she is not below 15 years of age and this is not rape under IPC regardless of her willingness or her consent. However, sexual intercourse with a girl under 15 years of age is rape, whether it is with or without her consent, against her will or not, whether it is by her husband or anybody else. This is clear from a reading of Section 375 IPC including Exception 2. Therefore, Section 375 IPC provides for three circumstances relating to “rape”. Firstly, sexual intercourse with a girl below 18 years of age is rape (statutory rape). Secondly, and by way of an exception, if a woman is between 15 and 18 years of age then sexual intercourse with her is not rape if the person having sexual intercourse with her is her husband. Her willingness or consent is irrelevant under this circumstance. Thirdly, sexual intercourse with a woman above 18 years of age is rape if it is under any of the seven descriptions given in Section 375 IPC (non-consensual sexual intercourse). The result of the above three situations is that the husband of a girl child between 15 and 18 years of age has blanket liberty and freedom to have non-consensual sexual intercourse with his wife and he would not be punishable for rape under IPC since such non-consensual sexual intercourse is not rape for the purposes of Section 375 IPC.

(Paras 29 to 33)

Other Legislations

A brief survey of the various statutes viz. the Protection of Human Rights Act, 1933, the Protection of Women from Domestic Violence Act, 2005, the Prohibition of Child Marriage Act, 2006 (PCMA), the Protection of Children from Sexual Offences Act, 2012 (Pocso Act) and the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act), reveals that a child is a person below 18 years of age who is entitled to the protection of her human rights including the right to live with dignity; if she is unfortunately married while a child, she is protected from domestic violence, both physical and mental, as well as from physical and sexual abuse; if she is unfortunately married while a child, her marriage is in violation of the law and therefore an offence and such a marriage is voidable at her instance and the person marrying her is committing a punishable offence; the husband of the girl child would be committing aggravated penetrative sexual assault when he has sexual intercourse with her and is thereby committing a punishable offence under the Pocso Act. A girl child placed in such circumstances is a child in need of care and protection and needs to be cared for, protected and appropriately rehabilitated or restored to society. All these “child-friendly statutes” are essential for the well-being of the girl child (whether married or not) and are protected by Article 15(3) of the Constitution. These child-friendly statutes also link child marriages and sexual intercourse with a girl child and draw attention to the adverse consequences of both. The only jarring note in this scheme of the pro-child legislations is to be found in Exception 2 to Section 375 IPC which provides that sexual intercourse with a girl child between 15 and 18 years of age is not rape if the sexual intercourse is between the girl child and her husband. Therefore, the question of punishing the husband simply does not arise.

(Para 53)

Adverse Effects of Child Marriage

There is a strong established link between early marriage and sexual intercourse with a married girl child between 15 and 18 years of age. There is a plethora of material to clearly indicate that sexual intercourse with a girl child below the age of 18 years (even within marriage) is not at all advisable for her for a variety of reasons, including her physical and mental well-being and her social standing—all of which should ordinarily be of paramount importance to everybody, particularly the State. An early marriage and sexual intercourse at an early age could have detrimental effects on the girl child not only in terms of her physical and mental health but also in terms of her nutrition, her education, her employability and her general well-being. To make matters worse, the detrimental impact could pass on to the children of the girl child who may be malnourished and may be required to live in an impoverished state due to a variety of factors. An early marriage therefore could have an intergenerational adverse impact.

(Paras 26 and 89)

Fundamental Rights

Article 21 of the Constitution

Article 21 of the Constitution gives a fundamental right to a girl child to live a life of dignity. An early marriage takes away the self-esteem and confidence of a girl child and subjects her, in a sense, to sexual abuse. Under no circumstances can it be said that such a girl child lives a life of dignity. The right of a girl child to maintain her bodily integrity is effectively destroyed by a traditional practice sanctified by IPC. Her husband, for the purposes of Section 375 IPC, effectively has full control over her body and can subject her to sexual intercourse without her consent or without her willingness since such an activity would not be rape.

(Para 90)

The girl child has right to bodily integrity and reproductive choice. She cannot be treated as a commodity having no say over her body or someone who has no right to deny sexual intercourse to her husband. The human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance. However, the reproductive choices are severely curtailed as far as a married girl child is concerned. There is every possibility that being subjected to sexual intercourse, the girl child might become pregnant and would have to deliver a baby even though her body is not quite ready for procreation. There are greater chances of a girl child dying during childbirth and there are greater chances of neonatal deaths. Children born from early marriages are more likely to be malnourished. It would, therefore, not be wise to continue with a practice, traditional though it might be, that puts the life of a girl child in danger and also puts the life of the baby of a girl child born from an early marriage at stake. Apart from constitutional and statutory provisions, constitutional morality forbids from giving an interpretation to Exception 2 to Section 375 IPC that sanctifies a tradition or custom that is no longer sustainable.

(Paras 66 and 91)

State of Maharashtra v. Madhukar Narayan Mardikar, (1991) 1 SCC 57 : 1991 SCC (Cri) 1; Suchita Srivastava v. UT of Chandigarh, (2009) 9 SCC 1 : (2009) 3 SCC (Civ) 570; Selvi v. State of Karnataka, (2010) 7 SCC 263 : (2010) 3 SCC (Cri) 1; Ritesh Sinha v. State of U.P, (2013) 2 SCC 357 : (2013) 2 SCC (Cri) 748; Devika Biswas v. Union of India, (2016) 10 SCC 726, relied on

Article 14 of the Constitution

Pro-child statutes are intended to and do consider the best interest of the child. These statutes have been enacted in the recent past though not effectively implemented. Given this situation, a few facts need to be acknowledged and accepted:

(Para 79)

Firstly, a child is and remains a child regardless of the description or nomenclature given to the child. It is universally accepted in almost all relevant statutes in our country that a child is a person below 18 years of age. Therefore, a child remains a child whether she is described as a street child or a surrendered child or an abandoned child or an adopted child. Similarly, a child remains a child whether she is a married child or an unmarried child or a divorced child or a separated child or a widowed child.

(Para 79.1)

Secondly, the age of consent for sexual intercourse is definitively 18 years and there is no dispute about this. Therefore, under no circumstance can a child below 18 years of age give consent, express or implied, for sexual intercourse. Therefore, the justification given on behalf of the Union of India for Exception 2 to Section 375 IPC that by virtue of getting married, the girl child has consented to sexual intercourse with her husband either expressly or by necessary implication has no substance. Unless Parliament gives any specific indication (and it has not given any such indication) that the age of consent could be deviated from the age of 18 years, statutorily fixed, for any rational reason, it cannot be assumed that a girl child who is otherwise incapable of giving consent for sexual intercourse has nevertheless given such consent by implication, necessary or otherwise only by virtue of being married. It would be reading too much into the mind of the girl child and assuming a state of affairs for which there is neither any specific indication nor any warrant. Constitutionally a female has equal rights as a male and no statute should be interpreted or understood to derogate from this position. If there is some theory that propounds such an unconstitutional myth, then that theory deserves to be completely demolished.

(Paras 79.2, 83 and 84)

Thirdly, Exception 2 to Section 375 IPC creates an artificial distinction between a married girl child and an unmarried girl child with no real rationale and thereby does away with consent for sexual intercourse by a husband with his wife who is a girl child between 15 and 18 years of age. An unmarried girl below 18 years of age could be a victim of rape under IPC and a victim of penetrative sexual assault under the Pocso Act. Such a victim might have the solace (if we may say so) of prosecuting the rapist. A married girl between 15 and 18 years of age could be a victim of aggravated penetrative sexual assault under the Pocso Act, but she cannot be a victim of rape under IPC if the rapist is her husband since IPC does not recognise such penetrative sexual assault as rape. Therefore such a girl child has no recourse to law under the provisions of IPC notwithstanding that the marital rape could degrade and humiliate her, destroy her entire psychology pushing her into a deep emotional crisis and dwarf and destroy her whole personality and degrade her very soul. However, such a victim could prosecute the rapist under the Pocso Act. There is no rationale for such an artificial distinction. Such an unnecessary and artificial distinction if accepted can again be introduced for other occasions for divorced children or separated children or widowed children.

(Paras 79.3 and 72)

A rapist remains a rapist and marriage with the victim does not convert him into a non-rapist. Whether sexual intercourse that a husband has with his wife who is between 15 and 18 years of age is described as rape (not an offence under Exception 2 to Section 375 IPC) or aggravated penetrative sexual assault [an offence under Section 5(n) of the Pocso Act and punishable under Section 6 of the Pocso Act] the fact is that it is rape as conventionally understood, though Parliament in its wisdom has chosen to not recognise it as rape for the purposes of IPC. That it is a heinous crime which also violates the bodily integrity of a girl child, causes trauma and sometimes destroys her freedom of reproductive choice is a composite issue that needs serious consideration and deliberation.

(Paras 75 and 67)

C.R v. United Kingdom, ECHR, Ser. A. No. 335-C (1995) : (1995) 21 EHRR 363; R. v. R., (1992) 1 AC 599 : (1991) 3 WLR 767 : (1991) 4 All ER 481 (HL); Eisenstadt v. Baird, 1972 SCC OnLine US SC 62 : 31 L Ed 2d 349 : 92 S Ct 1029 : 405 US 438 (1972); State of Karnataka v. Krishnappa, (2000) 4 SCC 75 : 2000 SCC (Cri) 755; Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490 : 1996 SCC (Cri) 133; State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 : 1996 SCC (Cri) 316; State of Haryana v. Janak Singh, (2013) 9 SCC 431 : (2014) 1 SCC (Cri) 212, referred to

Thus there is an apparent conflict or incongruity between the provisions of IPC and the Pocso Act. The rape of a married girl child (a girl child between 15 and 18 years of age) is not rape under IPC and therefore not an offence in view of Exception 2 to Section 375 IPC thereof but it is an offence of aggravated penetrative sexual assault under Section 5(n) of the Pocso Act and punishable under Section 6 of that Act. The punishment for rape (assuming it is committed) and the punishment for penetrative sexual assault is the same, namely, imprisonment for a minimum period of 7 years which may extend to imprisonment for life. Similarly, for an “aggravated” form of rape the punishment is for a minimum period of 10 years' imprisonment which may extend to imprisonment for life (under IPC) and the punishment for aggravated penetrative sexual assault (which is what is applicable in the case of a married girl child) is the same (under the Pocso Act). It is difficult to understand why this is so. There is no intelligible answer to the question as to what is the rational nexus between decriminalising sexual intercourse under IPC with a married girl child and an unclear and uncertain statutory objective. This conflict or incongruity needs to be resolved in the best interest of the girl child.

(Para 76)

Another anomaly is that although the husband of girl child can rape her but he cannot molest her, for if he does so he could be punished under the provisions of IPC. Thus different irrational standards have been laid down for the treatment of the girl child by her husband.

(Para 90)

Legislation which may be quite reasonable and rational at the time of its enactment may with the lapse of time and/or due to change of circumstances become arbitrary, unreasonable and violative of the doctrine of equality and even if the validity of such legislation may have been upheld at a given point of time, the Court may, in subsequent litigation, strike down the same if it is found that the rationale of classification has become non-existent.

(Para 88)

What is sought to be achieved by the artificial distinction is to acknowledge that child marriages are taking place in the country. Merely because child marriages have been performed in different parts of the country as a part of a tradition or custom does not necessarily mean that the tradition is an acceptable one nor should it be sanctified as such. Times change and what was acceptable a few decades ago may not necessarily be acceptable today. The impact and effect of Exception 2 to Section 375 IPC has to be considered not with the blinkered vision of the days gone by but with the social realities of today. Traditions that might have been acceptable at some historical point of time are not cast in stone. If times and situations change, so must views, traditions and conventions. In effect the practice of early marriage or child marriage even if sanctified by tradition and custom may yet be an undesirable practice today with increasing awareness and knowledge of its detrimental effects and the detrimental effects of an early pregnancy. Sooner this traditional practice is given up, it would be in the best interest of the girl child and for society as a whole.

(Paras 80, 85, 88 and 89)

State of M.P v. Bhopal Sugar Industries Ltd., (1964) 6 SCR 846 : AIR 1964 SC 1179; Rattan Arya v. State of T.N, (1986) 3 SCC 385; Anuj Garg v. Hotel Assn. of India, (2008) 3 SCC 1; Hotel Assn. of India v. Union of India, 2006 SCC OnLine Del 44 : (2006) 86 DRJ 668; Satyawati Sharma v. Union of India, (2008) 5 SCC 287, relied on

Motor General Traders v. State of A.P, (1984) 1 SCC 222, cited

The view that marital rape of a girl child has the potential of destroying the institution of marriage cannot be accepted. Marriage is not institutional but personal — nothing can destroy the “institution” of marriage except a statute that makes marriage illegal and punishable. A divorce may destroy a marriage but it does not have the potential of destroying the “institution” of marriage. A judicial separation may dent a marital relationship but it does not have the potential of destroying the “institution” of marriage or even the marriage. It cannot be said that no divorce should be permitted or that judicial separation should be prohibited.

(Para 92)

Looked at from another perspective, the PCMA actually makes child marriages voidable and makes the parties to a child marriage (other than the girl child) punishable for an offence under the said Act. For someone who supports the institution of marriage, nothing could be more destructive of the institution of marriage than the PCMA which makes a child marriage voidable and punishable on the one hand and on the other, it otherwise collaterally legitimises the pernicious practice of child marriages. It is doubtful if the Parliamentary Standing Committee intended such a situation along with its attendant adverse and detrimental impacts.

(Para 93)

Article 15 of the Constitution

The provisions of the JJ Act as well as the provisions of the Pocso Act are traceable to Article 15(3) of the Constitution which enables Parliament to make special provisions for the benefit of children. Article 15(3) of the Constitution is intended to benefit women. It is intended to discriminate in favour of women and children—a form of affirmative action to their advantage. It cannot and ought not to be interpreted restrictively but must be given its full play. Legislation intended for affirmative action in respect of a girl child must not only be liberally construed and interpreted but must override any other legislation that seeks to restrict the benefit made available to a girl child. This would only emphasise the spirit of Article 15(3) of the Constitution.

(Paras 95, 56 and 60)

State of A.P v. P.B Vijayakumar, (1995) 4 SCC 520 : 1995 SCC (L&S) 1056; Yusuf Abdul Aziz v. State of Bombay, 1954 SCR 930 : AIR 1954 SC 321 : 1954 Cri LJ 886, relied on

Mahadev Jiew v. B.B Sen, 1951 SCC OnLine Cal 182 : AIR 1951 Cal 563; Cyril Britto v. Union of India, 2003 SCC OnLine Ker 190 : AIR 2003 Ker 259; Shrikrishna Eknath Godbole v. Union of India, 2016 SCC OnLine Bom 9559, approved

Statutes concerning the rights of children are special laws concerning a special subject of legislation and therefore the provisions of such subject-specific legislations must prevail and take precedence over the provisions of a general law such as IPC. The subject-matter and the perspective of the statute are determinative of the question whether a statute is a general law or a special law. Therefore, for certain purposes a statute might be a special law but for other purposes, as compared to another statute, it might be a general law.

(Paras 95 and 96)

LIC v. D.J Bahadur, (1981) 1 SCC 315 : 1981 SCC (L&S) 111, relied on

The JJ Act gives a clear indication that a girl child who is in imminent risk of marriage before attaining the age of 18 years is a child in need of care and protection [Section 2(14)(xii) of the JJ Act]. It cannot be said with any degree of rationality that such a girl child loses her status as a child in need of care and protection soon after she gets married. If this provision is ignored or given a go by, it would put the girl child in a worse off situation because after marriage she could be subjected to aggravated penetrative sexual assault for which she might not be physically, mentally or psychologically ready. The intention of the JJ Act is to benefit a child rather than place her in difficult circumstances. A contrary view would not only destroy the purpose and spirit of the JJ Act but would also take away the importance of Article 15(3) of the Constitution. Surely, such an interpretation and understanding cannot be given to the provisions of the JJ Act.

(Para 97)

Similarly, the provisions of the Pocso Act make it quite explicit that the dignity and rights of a child below 18 years of age must be recognised and respected. For this purpose, special provisions have been made in the Pocso Act as for example Sections 28, 29 and 33. Once again the legislative slant is in favour of a child thereby giving substantive meaning to Article 15(3) of the Constitution. However, of much greater importance and significance is Section 42-A, which provides that the provisions of the Pocso Act are in addition to and not in derogation of the provisions of any other law in force which includes IPC. Moreover, the section provides that in the event of any inconsistency between the provisions of the Pocso Act and any other law, the provisions of the Pocso Act shall have overriding effect. It follows from this that even though IPC decriminalises the marital rape of a girl child, the husband of the girl child would nevertheless be liable for punishment under the provisions of the Pocso Act for aggravated penetrative sexual assault.

(Paras 98 and 99)

Prima facie it might appear that since rape is an offence under IPC (subject to Exception 2 to Section 375) while penetrative sexual assault or aggravated penetrative sexual assault is an offence under the Pocso Act and both are distinct and separate statutes, therefore there is no inconsistency between the provisions of IPC and the provisions of the Pocso Act. Only a notional or linguistic distinction is sought to be made between rape and penetrative sexual assault and rape of a married girl child and aggravated penetrative sexual assault. There is no rationale for this distinction and it is nothing but a completely arbitrary and discriminatory distinction.

(Para 100)

Karnataka Amendment

The most obvious and appropriate resolution of the conflict has been provided by the State of Karnataka—the State Legislature has inserted sub-section (1-A) in Section 3 of the PCMA (on obtaining the assent of the President on 20-4-2017) declaring that henceforth every child marriage that is solemnised is void ab initio. Therefore, the husband of a girl child would be liable for punishment for a child marriage under the PCMA, for penetrative sexual assault or aggravated penetrative sexual assault under the Pocso Act and if the husband and the girl child are living together in the same or shared household, for rape under IPC. It would be wise for all the State Legislatures to adopt the route taken by Karnataka to void child marriages and thereby ensure that sexual intercourse between a girl child and her husband is a punishable offence under the Pocso Act and IPC. Assuming all other State Legislatures do not take the Karnataka route, what is the correct position in law?

(Paras 77 and 78)

Harmonious and Purposive Interpretation

The provisions of various complementary statutes need to be harmonised and read purposively to present an articulate whole. Therefore, the entire issue of the interpretation of the JJ Act, the Pocso Act, the PCMA and Exception 2 to Section 375 IPC can be looked at from the perspective of purposive and harmonious construction of statutes relating to the same subject-matter, as well as the social context point of view. Viewed from any perspective, there seems to be no reason to arbitrarily discriminate against a girl child who is married between 15 and 18 years of age. On the contrary, there is every reason to give a harmonious and purposive construction to the pro-child statutes to preserve and protect the human rights of the married girl child.

(Paras 76, 101, 104 and 105)

Collector of Customs v. Digvijaysinhji Spg. & Wvg. Mills Ltd., AIR 1961 SC 1549 : (1961) 2 Cri LJ 720; Jugal Kishore v. State of Maharashtra, 1989 Supp (1) SCC 589; Abhiram Singh v. C.D Commachen, (2017) 2 SCC 629 : (2017) 2 SCC (Civ) 68, relied on

Seaford Court Estates Ltd. v. Asher, (1949) 2 KB 481 (CA); Asher v. Seafort Court Estates Ltd., 1950 AC 508 (HL), referred to

Implementation of Laws

The Preamble to our Constitution brings out our commitment to social justice, but unfortunately, this petition clearly brings out that social justice laws are not implemented in the spirit in which they are enacted by Parliament. Young girls are married in thousands in the country, and as Section 13 of the PCMA indicates, there is an auspicious day — Akshaya Trutiya — when mass child marriages are performed. Such young girls are subjected to sexual intercourse regardless of their health, their ability to bear children and other adverse social, economic and psychological consequences. Civil society can do just so much for preventing such child marriages but eventually it is for the Government of India and the State Governments to take proactive steps to prevent child marriages so that young girls in our country can aspire to a better and healthier life.

(Para 106)

Conclusion

Sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. The Exception carved out in IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. The artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child. The artificial distinction is contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in international conventions. It is also contrary to the philosophy behind some statutes, the bodily integrity of the girl child and her reproductive choice. What is equally dreadful, the artificial distinction turns a blind eye to trafficking of the girl child and surely each one of us must discourage trafficking which is such a horrible social evil.

(Para 1)

There are really five options before the Court: (i) To let the incongruity remain as it is — this does not seem a viable option, given that the lives of thousands of young girls are at stake; (ii) To strike down as unconstitutional Exception 2 to Section 375 IPC — in the present case this is also not a viable option since this relief was given up and no such issue was raised; (iii) To reduce the age of consent from 18 years to 15 years — this too is not a viable option and would ultimately be for Parliament to decide; (iv) To bring the Pocso Act in consonance with Exception 2 to Section 375 IPC — this is also not a viable option since it would require not only a retrograde amendment to the Pocso Act but also to several other pro-child statutes; (v) To read Exception 2 to Section 375 IPC in a purposive manner to make it in consonance with the Pocso Act, the spirit of other pro-child legislations and the human rights of a married girl child. Being purposive and harmonious constructionists, this is the only pragmatic option available. Therefore, there is absolutely no other option but to harmonise the system of laws relating to children and require Exception 2 to Section 375 IPC to now be meaningfully read as: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.” It is only through this reading that the intent of social justice to the married girl child and the constitutional vision of the Framers of our Constitution can be preserved and protected and perhaps given impetus.

(Para 107)

However, the larger issue of marital rape of adult women has not been dealt with here since that issue was not raised before the Court by the petitioner or the intervener.

(Para 108)

Per Deepak Gupta, J. (concurring)

Section 375 Exception 2 IPC

Under Section 375 IPC a man cannot even have consensual sex with a girl if she is below the age of 18 years and the girl is by law deemed unable to give her consent. However, if the girl child is married and she is aged above 15 years, then such consent is presumed and there is no offence if the husband has sex with his “wife”, who is above 15 years of age. If the “wife” is below 15 then the husband would be guilty of such an offence.

(Para 115)

The issue is whether a girl below 18 years who is otherwise unable to give consent can be presumed to have consented to have sex with her husband for all times to come and whether such presumption in the case of a girl child is unconscionable and violative of Articles 14, 16 and 21 of the Constitution of India. However the Court is not going into the issue of “marital rape” of women aged 18 years and above and the discussion is limited only to “wives” aged 15 to 18 years.

(Paras 116 and 114)

IPC was enacted in the year 1860 and the age given in Exception 2 of Section 375 has been changed from time to time. In 2013, after the unfortunate “Nirbhaya” incident took place, Parliament raised the age of consent under clause Sixthly to 18 years. The minimum age for marriage of a girl child remained at 18 years, but no change was made in Exception 2 to Section 375 IPC and a girl child who was married before the minimum age of marriage, could be subjected to sexual intercourse (forcible or otherwise) by her husband and if she was over 15 years of age, the husband could not be charged with any offence.

(Paras 117 and 118)

Other Legislations

The legislature, in its wisdom, has universally enacted that a person below the age of 18 years is deemed to be a child unable to look after his or her own interests. As far as marriage laws are concerned, as far back as 1978, the minimum age of marriage of a girl child was increased to 18 years.

(Paras 136 and 137)

The Pocso Act is a landmark legislation for protection of child rights and to prevent the sexual abuse and exploitation of children. The Pocso Act was enacted by Parliament in the year 2012 and it came into force on 14-11-2012. Certain amendments were made by the Criminal Law Amendment Act, 2013, whereby Section 42 and Section 42-A, were added. These amendments in the Pocso Act were brought by the same Amendment Act by which Section 375, Section 376 and other sections of IPC relating to crimes against women were amended. The definition of “rape” was enlarged and the punishment under Section 375 IPC was made much more severe. Section 42 of the Pocso Act makes it clear that where an offence is punishable, both under the Pocso Act and also under IPC, then the offender, if found guilty of such offence, is liable to be punished under that Act, which provides for more severe punishment. This is against the traditional concept of criminal jurisprudence that if two punishments are provided, then the benefit of the lower punishment should be given to the offender. The legislature knowingly introduced Section 42 of the Pocso Act to protect the interests of the child. As the Statement of Objects and Reasons of the Pocso Act shows, this Act was enacted as a special provision for protection of children, with a view to ensure that children of tender age are not abused during their childhood and youth. These children were to be protected from exploitation and given facilities to develop in a healthy manner.

(Paras 132 and 188)

Section 42-A of the Pocso Act has two parts. The first part of the section provides that the Act is in addition to and not in derogation of any other law. Therefore, the provisions of the Pocso Act are in addition to and not above any other law. However, the second part of Section 42-A provides that in case of any inconsistency between the provisions of the Pocso Act and any other law, then it is the provisions of the Pocso Act, which will have an overriding effect to the extent of inconsistency. The Pocso Act defines a “child” to be a person below the age of 18 years. “Penetrative sexual assault” and “aggravated penetrative sexual assault” have been defined in Section 3 and Section 5 of the Pocso Act. Provisions of Sections 3 and 5 are by and large similar to Section 375 and Section 376 IPC. Section 3 of the Pocso Act is identical to the opening portion of Section 375 IPC whereas Section 5 Pocso Act is similar to Section 376(2) IPC. Exception 2 to Section 375 IPC, which makes sexual intercourse or acts of consensual sex of a man with his own “wife” not being under 15 years of age, not an offence, is not found in any provision of the Pocso Act. Therefore, this is a major inconsistency between the Pocso Act and IPC. As provided in Section 42-A, in case of such an inconsistency, the Pocso Act will prevail. Moreover, the Pocso Act is a special Act, dealing with the children whereas IPC is the general criminal law. Therefore, the Pocso Act will prevail over IPC and Exception 2 insofar as it relates to children, is inconsistent with the Pocso Act.

(Para 189)

As regards the Prohibition of Child Marriage Act (which was enacted by repealing the Child Marriage Restraint Act, 1929), the punishments provided therein are neither sufficiently punitive nor deterrent. Therefore, the PCMA has been breached with impunity. The time has come when this Act needs serious reconsideration, especially in view of the harsh reality that a lot of child trafficking is taking place under the garb of marriage including child marriage. More stringent punishments should be provided and some minimum punishment should definitely be provided especially to those mature adults who promote such marriages and who perform, conduct, direct or abet any such marriage. Otherwise, this legislation will never act as a sufficient deterrent to prevent or even reduce child marriages.

(Para 123)

Section 2(vii) of the Dissolution of Muslim Marriages Act, 1939 deals with girls below the age of 15 years who are got married. Such a girl is required to repudiate her marriage before she attains majority and she can only repudiate the marriage if the marriage has not been consummated. This virtually makes mockery of the PCMA. Therefore, even in a marriage which is void under PCMA, the girl will have to obtain a decree for dissolution of her marriage, that too before she attains the age of majority and only if the marriage has not been consummated. Another anomalous situation is that if the husband has forcible sex with such a girl, the marriage is consummated and the girl child is deprived of her right to get the marriage annulled.

(Para 126)

Similarly under Section 13(2)(iv) of the Hindu Marriage Act, 1955, a Hindu girl can file a petition for divorce on the ground that her marriage, whether consummated or not, was solemnised before she attained the age of 15 years and she has repudiated her marriage after attaining the age of 15 years but before attaining the age of 18 years. This is also not in consonance with the provisions of PCMA, according to which marriage of a child bride below the age of 15 years is void and there is no question of seeking a divorce. A void marriage is no marriage. Another anomaly is that whereas a child bride, who is above 15 years under PCMA, can apply for annulment of marriage up to the age of 20 years, under Section 13(2)(iv) of the Hindu Marriage Act, a child bride under the age of 15 years must repudiate the marriage after attaining the age of 15 years but before she attains the age of 18 years i.e even before she attains majority. The question that remains unanswered is who will represent or help this child, who has been forced to marry, to approach the courts.

(Para 127)

After the PCMA was enacted, both the Hindu Marriage Act, 1955 and the Dissolution of Muslim Marriages Act, 1939 also should have been suitably amended, but this has not been done. The PCMA is a secular Act applicable to all. It being a special Act dealing with children, the provisions of this Act will prevail over the provisions of both the Hindu Marriage Act and the Muslim Marriages and Divorce Act, insofar as children are concerned.

(Para 128)

Adverse Effects of Child Marriage

The fact that child marriage is a reprehensible practice; that it is an abhorrent practice; that it violates the human rights of a child, cannot be seriously disputed. A child marriage will invariably lead to early childbirth and this will adversely affect the health of the girl child. A child bride is more than doubly prone to health problems than a grown up woman. The courts have consistently held that child marriage is an evil which should be avoided.

(Paras 138, 139, 141 and 152)

Assn. for Social Justice & Research v. Union of India, 2010 SCC OnLine Del 1964 : (2010) 118 DRJ 324; Court on its Own Motion (Lajja Devi) v. State, 2012 SCC OnLine Del 3937 : (2012) 131 DRJ 225; T. Sivakumar v. Inspector of Police, 2011 SCC OnLine Mad 1722 : (2011) 5 CTC 689, referred to

But most of the child brides are even below the age of 15 years. There is a practice in many parts of the country where children, both girls and boys, are married off, even before they attain puberty. They are innocent children, who do not even understand what marriage is. The practice which is widely prevalent is that a girl who is married pre-puberty is normally kept at her parents' home and is sent to her matrimonial home after she attains puberty in a ceremony which is commonly referred to as “gauna”. Merely because something is going on for a long time is no ground to legitimise and legalise an activity which is per se illegal and a criminal offence.

(Paras 138 and 178)

Fundamental Rights

When the constitutional validity of the law enacted by the legislature is under challenge and there is no challenge to the legislative competence, the court will always raise a presumption of the constitutionality of the legislation. However, if the law under challenge violates the fundamental rights of the citizens, the law is arbitrary, or is discriminatory, the courts can either hold the law to be totally unconstitutional and strike down the law or the court may read down the law in such a manner that the law when read down does not violate the Constitution. While the courts must show restraint while dealing with such issues, the court cannot shut its eyes to the violations of the fundamental rights of the citizens. Therefore, if the legislature enacts a law which is violative of the fundamental rights of the citizens, is arbitrary and discriminatory, then the court would be failing in its duty if it does not either strike down the law or read down the law in such a manner that it falls within the four corners of the Constitution. It is not the job of the court to decide whether a law is good or bad. Policy matters fall within the realm of the legislature and not of the courts. The court, however, is empowered and has the jurisdiction to decide whether a law is unconstitutional or not. A law can be struck down if the court finds it is arbitrary and falls foul of Article 14 and other fundamental rights.

(Paras 161, 168, 169 and 175)

Shayara Bano v. Union of India, (2017) 9 SCC 1 : (2017) 4 SCC (Civ) 277, followed

Sub-Divisional Magistrate, Delhi v. Ram Kali, (1968) 1 SCR 205 : AIR 1968 SC 1 : 1968 Cri LJ 82; Pathumma v. State of Kerala, (1978) 2 SCC 1; State of A.P v. P. Laxmi Devi, (2008) 4 SCC 720; Subramanian Swamy v. CBI, (2014) 8 SCC 682 : (2014) 6 SCC (Cri) 42 : (2014) 3 SCC (L&S) 36; State of Punjab v. Khan Chand, (1974) 1 SCC 549; Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1; Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; E.P Royappa v. State of T.N, (1974) 4 SCC 3 : 1974 SCC (L&S) 165; Maneka Gandhi v. Union of India, (1978) 1 SCC 248; A.L Kalra v. Project and Equipment Corpn. of India Ltd., (1984) 3 SCC 316 : 1984 SCC (L&S) 497; Babita Prasad v. State of Bihar, 1993 Supp (3) SCC 268 : 1993 SCC (L&S) 1076; Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : 1981 SCC (L&S) 258; K.R Lakshmanan v. State of T.N, (1996) 2 SCC 226; State of A.P v. McDowell & Co., (1996) 3 SCC 709, relied on

Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955 : (1962) 2 Cri LJ 103; Shell Co. of Australia v. Federal Commr. of Taxation, 1931 AC 275 : 1930 All ER Rep 671 (PC); Mithu v. State of Punjab, (1983) 2 SCC 277 : 1983 SCC (Cri) 405; Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155, cited

Oliver Twist: Author Charles Dickens, referred to

Article 14 of the Constitution

When Parliament has decided that a girl below 18 years is not capable of giving consent to have sex and legally she cannot marry and also prohibited child marriage and come to the conclusion that child marriage is an activity which must come to an end, the practice of child marriage which is admittedly an evil and is also a criminal offence, cannot be set up as an exception in a case of a girl child, who is subjected to sexual intercourse by her so-called husband. Shockingly, even if this sexual intercourse is forcible and without the consent of the girl child, then also the husband is not liable for any offence. This law is definitely not right, just and fair and is, therefore, arbitrary.

(Para 178)

Now when the age of consent is changed to 18 years, the minimum age of marriage is also 18 years and, therefore, fixing a lower age under Exception 2 is totally irrational. It strikes against the concept of equality. It violates the right of fair treatment of the girl child, who is unable to look after herself. The magic figure of 15 years is not based on any scientific evaluation, but is based on the mere fact that it has been existing for a long time. The age of 15 years in Exception 2 was fixed in the year 1940 when the minimum age for marriage was also 15 and the age of consent under clause Sixthly was 16. In the present context when the age for marriage has been fixed at 18 years and when the age of consent is also fixed at 18 years, keeping the age under Exception 2 at 15 years, cannot be said to be right, just and fair. In fact, it is arbitrary and oppressive to the girl child.

(Para 182)

A law can also be set aside if it is discriminatory. The law discriminates between a girl child aged less than 18 years, who may be educated and has sexual intercourse with her consent and a girl child who may be married even before the age of 15 years, but her marriage has been consummated after 15 years even against her consent. This is invidious discrimination which is writ large. The discrimination is between a consenting girl child, who is almost an adult and non-consenting child bride. To give an example, if a girl aged 15 years is married off by her parents without her consent and the marriage is consummated against her consent, then also this girl child cannot file a criminal case against her husband. The State is talking of the reality of child marriages. What about the reality of the rights of the girl child? This helpless, unprivileged girl cannot be deprived of her right to say “yes” or “no” to marriage or to having sex with her husband, even if she has consented for the marriage. While interpreting such a law, the interpretation which must be preferred is the one which protects the human rights of the child, which protects the fundamental rights of the child, the one which ensures the good health of the child and not the one which tries to say that though the practice is “evil” but since it is going on for a long time, such “criminal” acts should be decriminalised.

(Para 184)

The State is entitled and empowered to fix the age of consent. The State can make reasonable classification but while making any classification it must show that the classification has been made with the object of achieving a certain end. The classification must have a reasonable nexus with the object sought to be achieved. In this case the justification given by the State is only that it does not want to punish those who consummate their marriage. The stand of the State is that keeping in view the sanctity attached to the institution of marriage, it has decided to make a provision in the nature of Exception 2 to Section 375 IPC. This begs the question as to why in this Exception the age has been fixed as 15 years and not 18 years. A girl can legally consent to have sex only after she attains the age of 18 years. She can legally enter into marriage only after attaining the age of 18 years. When a girl gets married below the age of 18 years, the persons who contract such a marriage or abet in contracting such child marriage, commit a criminal offence and are liable for punishment under the PCMA. In view of this position there is no rationale for fixing the age at 15 years. This age has no nexus with the object sought to be achieved viz. maintaining the sanctity of marriage because by law such a marriage is not legal. It may be true that this marriage is voidable and not void ab initio (except in the State of Karnataka) but the fact remains that if the girl has got married before the age of 18 years, she has the right to get her marriage annulled. Irrespective of the fact that the right of the girl child to get her marriage annulled, it is indisputable that a criminal offence has been committed and other than the girl child, all other persons including her husband, and those persons who were involved in getting her married are guilty of having committed a criminal act. When the State on the one hand, has, by legislation, laid down that abetting child marriage is a criminal offence, it cannot, on the other hand defend this classification of girls below 18 years on the ground of sanctity of marriage because such classification has no nexus with the object sought to be achieved. Therefore, also Exception 2 insofar as it relates to girls below 18 years is discriminatory and violative of Article 14 of the Constitution.

(Para 185)

One more ground for holding that Exception 2 to Section 375 IPC is discriminatory is that this is the only provision in various penal laws which gives immunity to the husband. The husband is not immune from prosecution as far as other offences are concerned. Therefore, if the husband beats a girl child and has forcible sexual intercourse with her, he may be charged for the offences under Sections 323, 324, 325 IPC, etc. but he cannot be charged with rape. This leads to an anomalous and astounding situation where the husband can be charged with lesser offences, but not with the more serious offence of rape. As far as sexual crimes against women are concerned, these are covered by Sections 354, 354-A, 354-B, 354-C, 354-D IPC. These relate to assault or use of criminal force against a woman with intent to outrage her modesty; sexual harassment and punishment for sexual harassment; assault or use of criminal force to woman with intent to disrobe; voyeurism; and stalking respectively. There is no exception clause giving immunity to the husband for such offences. The Domestic Violence Act will also apply in such cases and the husband does not get immunity. There are many other offences where the husband is either specifically liable or may be one of the accused. The husband is not given the immunity in any other penal provision except in Exception 2 to Section 375 IPC. It does not stand to reason that only for the offence of rape the husband should be granted such an immunity especially where the “victim wife” is aged below 18 years i.e below the legal age of marriage and is also not legally capable of giving consent to have sexual intercourse. Exception 2 to Section 375 IPC is, therefore, discriminatory and violative of Article 14 of the Constitution of India, on this count also.

(Para 186)

The discrimination is absolutely patent and, therefore, Exception 2, insofar as it relates to the girl child between 15 to 18 years is not only arbitrary but also discriminatory, against the girl child.

(Para 187)

Article 21 of the Constitution

The “right to life” envisaged in Article 21 of the Constitution of India is not merely a right to live an animal existence. Right to live with human dignity. Life should be meaningful and worth living. Life has many shades. Good health is the raison d'être of a good life. Without good health there cannot be a good life. In the case of a minor girl child good health would mean her right to develop as a healthy woman. This not only requires good physical health but also good mental health. The girl child must be encouraged to bloom into a healthy woman. The girl child must not be deprived of her right of choice. The girl child must not be deprived of her right to study further. When the girl child is deprived of her right to study further, she is actually deprived of her right to develop into a mature woman, who can earn independently and live as a self-sufficient independent woman. In the modern age, when we talk of gender equality, the girl child must be given equal opportunity to develop like a male child. In fact, because of the patriarchal nature of our society, some extra benefit must be showered upon the girl child to ensure that she is not deprived of her right to life, which would include her right to grow and develop physically, mentally and economically as an independent self-sufficient female adult.

(Para 179)

The contention with reference to the Supreme Court's recent judgment in K.S Puttaswamy, (2017) 10 SCC 1 that the right to privacy of the girl child is also violated by Exception 2 to Section 375 IPC has not been purposely gone into because anything said or urged in this behalf would affect any case being argued on “marital rape” even in relation to “women over 18 years of age”. In this case, the issue raised is only with regard to the girl child and, therefore, it is not proper to deal with this issue which may have wider ramifications especially when the case of girl child can be decided without dealing with the issue of privacy.

(Para 195)

K.S Puttaswamy v. Union of India, (2017) 10 SCC 1, referred to

Article 15 of the Constitution

It is true that at times the State, because of paucity of funds, or other reasons beyond its control, cannot live up to the expectations of the people. At the same time, it is not expected that the State should frame a law, which adversely affects the health of a citizen, that too a minor girl child. The State, under Article 15 of the Constitution, is in fact, empowered to make laws favouring women. Reservation for women is envisaged under Article 15 of the Constitution.

(Para 180)

Vishaka v. State of Rajasthan, (1997) 6 SCC 241 : 1997 SCC (Cri) 932, relied on

When a girl is compelled to marry before she attains the age of 18 years, her health is put in serious jeopardy. As is evident from various reports, girls who were married before the age of 19 years are likely to suffer medical and psychological problems. A 15 or 16-year-old girl, when forcibly subjected to sexual intercourse by her “husband”, undergoes trauma, which her body and mind is not ready to face. The girl child is also twice as more likely to die in childbirth than a grown up woman. The least, that one would expect in such a situation, is that the State would not take the defence of tradition and sanctity of marriage in respect of girl child, which would be totally violative of Articles 14, 15 and 21 of the Constitution. Therefore, Exception 2 to Section 375 IPC is arbitrary since it is violative of the principles enshrined in Articles 14, 15 and 21 of the Constitution of India. Insofar as it relates to the girl child below eighteen years, is unreasonable, unjust, unfair and violative of the rights of the girl child. To that extent the same is arbitrary and liable to be set aside.

(Paras 181 and 183)

Karnataka Amendment

In the State of Karnataka an amendment was made in the PCMA and sub-section (1-A) has been inserted in Section 3, which provided that any marriage of a child i.e a female aged below 18 years and a male below 21 years is void ab initio in the State of Karnataka. This is how the law should have been throughout the country. Where the marriage is void, there cannot be a husband or a wife and protection of Exception 2 to Section 375 IPC cannot be availed of by those persons, who claim to be “husband” of “child brides” pursuant to a marriage which is illegal and void. This leads to an anomalous situation. In Karnataka, if a husband has sexual intercourse with his “wife” aged below 18 years, since such marriage would be void ab initio, the wife cannot be treated to be a legal wife and, therefore, the husband cannot get the benefit of Exception 2 to Section 375 IPC whereas in the rest of the country he would be entitled to the benefit of such exception and be immune from prosecution.

(Paras 154 to 156)

Muthamma Devaya v. Union of India, 2010 SCC OnLine Kar 5452, referred to

Conclusion—Relief

Exception 2 to Section 375 IPC insofar as it relates to a girl child below 18 years is liable to be struck down on the following 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 Articles 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 the Pocso Act, which must prevail.

(Para 197)

Since the Court has not dealt with the wider issue of “marital rape”, Exception 2 to Section 375 IPC should be read down to bring it within the four corners of law and make it consistent with the Constitution of India. Therefore, Exception 2 to Section 375 IPC is read down as follows: “Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape.” It is, however, made clear that this judgment will have prospective effect.

(Paras 196 and 197)

It is also clarified that Section 198(6) CrPC will apply to cases of rape of “wives” below 18 years, and cognizance can be taken only in accordance with the provisions of Section 198(6) CrPC. It is reiterated that nothing said in this judgment shall be taken to be an observation one way or the other with regard to the issue of “marital rape”.

(Paras 198 and 199)

One of the doubts raised was if the Supreme Court strikes down, partially or fully, Exception 2 to Section 375 IPC, is the Court creating a new offence? There can be no cavil of doubt that the courts cannot create an offence. However, there can be no manner of doubt that by partly striking down Section 375 IPC, no new offence is being created. The offence already exists in the main part of Section 375 IPC as well as in Sections 3 and 5 of the Pocso Act. What has been done is only to read down Exception 2 to Section 375 IPC to bring it in consonance with the Constitution and the Pocso Act. The Court is not creating any new offence but only removing what was unconstitutional and offensive.

(Paras 190 and 194)

R. v. Clarence, (1888) LR 22 QBD 23 (CCR); R. v. Clarke, (1949) 2 All ER 448, referred to

The History of the Pleas of the Crown, (1736) Vol. 1, Ch. 58, p. 629, referred to

R-D/59204.CR