INDEPENDENT THOUGHT V.

UOI

This case focuses on the question of minor girls between the age of 15 to 18 and whether it
will amount to rape if she has sexual intercourse with her husband. It draws attention towards
two important aspects – consent of the minor girl (hereinafter, ‘minor girl’ will mean a girl
between 15 to 18 years, unless otherwise specified) as well as the components of rape
(‘penetrative sexual assault’ and ‘aggravated penetrative sexual assault’) under the IPC and
its resonance with the provisions of POSCO and JJ Act.

1) J. Madan Lokur:
 Prima facie, the definition of ‘rape’ under the IPC and the understanding of
‘penetrative sexual assault’ and ‘aggressive penetrative sexual assault’ has no real
distinction in its meanings despite being in two different statutes. They also entail
the same punishment. The only difference is that marital rape of a minor girl will not
amount to rape due to Exception 2 of Sec 375. Although marital rape of a minor girl
is in essence nothing but ‘aggravated penetrative sexual assault’ on a minor which is
punishable under the POCSO Act, Justice Lokur pointed out that it would be
arbitrary and discriminatory for Sec 375 of the IPC to not protect the minor girl in
such a case.
2) J. Deepak Gupta:
 The intention of the legislature behind exempting marital rape of minor girls
between the age of 15 to 18 from the definition of ‘rape’ is to protect the sanctity
of marriage. However, when the legal age for a woman getting married is 18, then
the marriage in question becomes voidable. Additionally under the POCSO, the
husband of the minor girl, and all others who have abetted the marriage of the
minor girl are nothing but abettors of child marriage (i.e., a criminal offence). Far
from having a rational nexus of Exception 2 of Sec 375 with protecting the
sanctity of marriage, a different provision hold such a marriage as voidable which
is contradictory. Therefore, exempting minor girls’ husbands from being held
liable for rape under Sec 375 due to Exception 2 does not pass the test of Art. 14.
 Another reason why this provision fails the test of Art. 14 is because the husband
in many other offences, such as use of criminal force, stalking, voyeurism, etc.,
does not get full immunity. He can even be made a party in matters that arise
under the Domestic Violence Act. However, for a more serious crime like that of
‘rape’ which can cause serious bodily impact and mental trauma on a minor girl,
 the husband has been given full immunity. Once again, there is no rational nexus
between Exception 2 of Sec 375 and the welfare of minor girls.
 Therefore, the bench declared Exception 2 of Sec 375 to be struck down insofar as
it relates to minor girls.

SOME HIGHLIGHTS OF THE JUDGEMENT:

 Art. 15 prohibits discrimination on various grounds, one of them being ‘age’. It

was even argued by the counsel for the petitioners that only because a minor girl
is married, she will be bodily and mentally capable of maintaining sexual relations
and carrying out conjugal relations whereas at the same age she would not be
capable if she was not married is a hollow argument and a flawed distinction
between two classes of minor girls. This is also the exact opposite of what is
expected from Art.15(3) which gives the State power to make special laws for
women and children.
 The 84th Law Commission Report also mentioned that when the Child Marriage
Restraint Act, 1929 prohibited marriage below 18 years, sexual intercourse with a
minor girl must also be prohibited and the same must be reflected in the IPC.
 One of the arguments of the Union of India is that Sec 3(1) of the Prohibition of
Child Marriage Act gives the power in the hands of the minor girl (child bride) to
repudiate the marriage within two years after turning 18. However, another
contradiction that arises is that with the Hindu Marriage Act, 1955 which states
under Sec 13(2)(iv) wherein a child bride can repudiate her marriage (opt for
divorce) on account of marriage before legal age) after turning 15, but before
turning 18.
 Even the United Nations has expressed its concerns regarding the existing laws
across countries which are lenient towards protection of women from various
kinds of violence against women. One the gravest ones being early marriage, i.e.,
marriage of a minor girl. It was also acknowledged that the traditional definitions
of terms like ‘violence’ and ‘abuse’ were being carried till date as many nations
had not included mental abuse and mental violence which even more pertinent to
be addressed for the welfare of minor girls.
 The National Charter for Children 2003 was implemented which stated under
Clause 11 put the responsibility on the State and community to ensure that crimes
 and atrocities committed against the girl child, including child marriage,
discriminatory practices, forcing girls into prostitution and trafficking are
eradicated. It expressly mentioned under clause (c) to abolish child marriage.
 This Charter laid down many goals and principles for the welfare of the child
which ultimately led to the National Plan of Action for Children, 2016.

Prohibition of Child Marriage Act, 2006 [PCMA]

Sec 3 states that a child marriage is voidable at the option of any one of the parties to the
child marriage. At the same time, the Act also prescribes punishment for contracting of a
child marriage, despite not making it ‘void’. Sec 9 states the punishment for a male adult
marrying a minor child. Sec 10 gives punishment even for abetment of child marriage. Sec 11
lays down the punishment for allowing a child marriage to take person in somebody’s
knowledge. While Sec 13 gives scope for injunction by a jurisdictional judicial officer upon a
chid marriage, Sec 14 states that any marriage conducted despite an injunction will be void.

Protection of Children from Sexual Offences Act, 2012 [POCSO]

This Act is one of the pillars of child welfare in India, enacted under Art. 15(3) of the
Constitution of India. The Preamble itself lays down the principle of ‘best interest of the
child’ which is a reflection of the UNCRC, a Convention that India has acceded. The
Preamble also mentions that sexual exploitation and sexual abuse of children are heinous
crimes and need to be effectively addressed. This contradicts the allowance of marital rape of
a minor girl by her husband under exception 2 to Sec 375 and a violation of the UNCRC.

Sec 5 also states that whenever a child is a victim of penetrative sexual assault, the culprit
will automatically be booked for ‘aggravated penetrative sexual assault’ is he is related to the
minor girl. Although marriage forms one of the most sacred unions establishing a
relationship, the husband receives full immunity for rape under Sec 375 of the IPC although
as per POCSE, he has committed aggravated penetrative sexual assault (while the former is
heard in a Trial Court constituted for the purposes of IPC, the latter is heard before a Special
Court constitution under Sec 28 of the POCSO).

The baffling inconsistency between the two legislations leads to a confusion as which law
must apply when a minor girl is raped by her husband, POCSO or the IPC? Sec 42-A of
POCSO states that its provisions will override any other provision which is not consistent
with the Act. On the other hand, the IPC under Sec 5 and Sec 41 give the status of ‘special
law’ when a statute is implemented for a particular subject. This incongruity between various
provisions has been resolved in this judgement.

Juvenile Justice (Care and Protection of Children) Act, 2015 [JJ Act]

Section 2(12) of the JJ Act defines a child as a person who has not completed 18 years of age.
A child in need of care and protection is defined in Section 2(14) of the JJ Act, inter alia, as a
child "who is at imminent risk of marriage before attaining the age of marriage and whose
parents, family members, guardian and any other persons are likely to be responsible for
solemnization of such marriage". Clearly a girl child below 18 years of age and who is sought
to be married is a child in need of care and protection. She is therefore, required to be
produced before a Child Welfare Committee constituted under Section 27 of the JJ Act so
that she could be cared for, protected and appropriately rehabilitated or restored to society.

Constitution of India, 1950

The various provisions that cover fundamental rights strengthen the arguments of the
petitioners in this case. As mentioned earlier, there is no rational nexus between Exception 2
of Sec 375 and the welfare of minor girl and thus is fails the test of Art. 14.

The JJ and POCSO are Acts which have been implemented for the welfare of Children which
is allowed under Art. 15(3) of the Constitution, however, it still fails to punish a man for
causing aggravated penetrative sexual assault on his minor wife for the sake of protecting the
‘sanctity of marriage’ even when marriage with a minor girl is not a valid marriage.

Art. 21 of the Constitution also gives the right to life and personal liberty, which includes the
right to bodily integrity and reproductive choice by way of liberal interpretation of the
Supreme Court in Suchita Srivastava v. Chandigarh Administration. Yet, a minor girl will
have no legal recourse if the husband forces her to procreate as he will receive full immunity
under Exception 2 of Sec 375. This is a heinous crime which not only violates the bodily
integrity of a girl child, but also causes trauma and sometimes destroys her freedom of
reproductive choice.

Rape and Aggravated Penetrative Sexual Assault: The SC observed in this judgement that as
per common understanding, the legal meanings of rape under Sec 375 and aggravated
penetrative sexual assault under Sec 5 and Sec 6 of POCSO makes no difference in practical
terms because both the crimes is nothing but an ACT OF RAPE and hence must be treated
like that too under the law. The Supreme Court in State of Haryana v. Janak Singh noted that
rape violated dignity of a woman as it affects her personality and confidence level and
therefore, it constitutes a violation of Art. 21. Looking this perception from a minor child’s
point of view, the mental trauma on a young girl would be even more catastrophic making it
even more important to protect under the law.

The Judgement in Independent Thought v. UOI

The European Commission on Human Rights had rightly pointed out in CR v. UK that a
rapist remains a rapist regardless of his relationship with the victim. Guided by this principle,
the Supreme Court opted to rightfully harmonize all the laws to ensure that the best interest of
the minor girl is achieved. The Court started with putting some facts in place:

- A child remains a child whether he/she is married or not. It is universally accepted

that a child is one who is below the age of 18.
- The legal age to give consent, expressed or implied, for sexual intercourse remains 18
as per the law irrespective of their marital status.
- Exception 2 of Sec 375 creates an artificial classification between a married and an
unmarried minor girl which does not pass the test of Art. 14 and deprives the minor
girl of remedy if her husband commits aggravated penetrative sexual assault (APSA)
on her.

The Union of India however took the defence of social and economic realities in India to
justify retaining the age to 15 years and not increasing it to 18 years under Exception 2 of Sec
375 as child marriage is very much prevalent. The UOI not only overlooked the contradicting
provisions in PCMA, POCSO and the JJ Act, but also side lined the bodily hard and mental
trauma that a minor girl has to go through. The UOI stated that the girl gives her consent to
the sexual intercourse when she gets married. Moreover, UOI also stated that child marriage
is a tradition in many regions and that by curtailing the consummation of such marriage only
because the bride is a minor girl would amount to hurting such traditions whereas culture
must be respected by the law and not destroyed. The SC did not accept any of these
justifications and said we must run with the societal realities of today and not be bound by
traditions which clash with contemporary mind-set, especially in the backdrop of living a life
with dignity under Art. 21.

Therefore, owing to the status of ‘Special Laws’ of PCMA, POCSO and the JJ Acts, in
addition to the irrational artificial difference under Exception 2 of Sec 375of the IPC, the
Court made now seeks Exception 2 of Sec 375 to protect all girls below the age of 18 from
penetrative sexual assault as well as aggravated penetrative sexual assault (including her
husband).