Independent Thought VS Union Of India

Introduction-

Case Name: Independent Thought VS Union Of India

Citation: (2017) 10 SCC 800
Appellant: Independent Thought
Respondent: Union Of India & Anr
Dated: 11 October 2017
Bench: Hon’ble Justice Madan Lokur & Hon’ble Justice Deepak Gupta

Facts of the Case-

A non-governmental group that is registered with the society filed a petition on

August 6, 2009. The non-governmental organisation focuses on legal research, legal
aid, and counselling concerning children's rights and other rights that have an impact
on children. The NGO provides hand holding help, technical assistance, and legal
support to several other non-governmental organisations. Furthermore, it helps the
administrations of other states.
In line with Article 32 of the Indian Constitution, Independent Thought petitioned the
Hon'ble Supreme Court with a writ suit (W.P.(C) 382/2013) to draw attention to the
rights that married girls between the ages of 15 and 18 are denied. The petitioner seeks
for a writ stating that Exception 2 to Section 375 of the Indian Penal Code, 1860
(henceforth referred to as the "IPC") violates Articles 14, 15, and 21 of the
Constitution. According to Exception 2 of Section 375 of the IPC, a man having
intercourse with his wife, who is older than 15 but younger than 18, whether or not
she knows or consents to it, does not constitute rape.
Issues-

1. Whether sexual activity between a man and his wife, a girl between the ages
of 15 and 18, constitutes rape?
2. Whether the IPC’s Section 375’s Exception 2 is unreasonable?
3. How discriminatory is Exception 2 to Section 375 of the IPC?
4. Does the court create a new offence?

Section 375 of IPC:

Section 375 of the Indian Penal Code states that a man commits rape if he has
intercourse with a woman against her will or without her consent and if all seven of
the prerequisites specified in the clauses of Section 375 are fulfilled. Section 375(6)
states that a man has committed rape if he had sexual intercourse with a female under
the age of 16 whether or whether the girl consented or was willing. Usually, this is
used to describe "statutory rape," in which it makes no difference if a male raped a
female under the age of 18 with her consent or against her will.

A man who had intercourse with his wife while she was above 15—with or without
her consent—is not guilty of rape under Section 375 of the IPC's Exception 2.
Nonetheless, regardless of whether a girl is married and regardless of whether you
have her knowledge or consent, having intercourse with her before the age of fifteen is
prohibited under Section 375 of the Indian Penal Code. Consequently, regardless of
the intention or approval of the married, over-15-year-old female kid, the husband will
be released from the allegations of rape and will not be found guilty of raping her just
because she is married.

Arguments by the Appellant-

The petitioner said that whether or not the girl is his wife has no influence on whether
the act counts as rape because Section 375 of the IPC defines rape as having sexual
relations with or without her permission when she is under the age of 16. Therefore,
just because she is his wife and he has the right to her body does not mean that he will
get rape immunity under Exception 2 to Section 375 of the IPC.

The petitioner's competent counsel claims that Exception 2 to Section 375 of the IPC
is not only discriminatory in nature but also violates Article 15(3), which directs
Parliament to provide particular measures for women and children.

The marriage of a female child does not automatically mean that she has consented to
have conjugal contact with her spouse or to participate in any other type of sexual
behaviour. Additionally, the petitioner's attorney stated that just because something
has been done traditionally in the past, it does not automatically apply in the present.
An obvious prejudice may be seen in the distinction made between a married girl
between the ages of 15 and 18 whose sexual relations with or without her consent do
not constitute rape and a girl under the age of 18 whose sexual relations with or
without her consent do.

According to the petitioner, a girl who has been married and is under the age of 18
lacks emotional, physical, and mental stability. This will have a detrimental impact on
the female child's overall well-being, physical and mental health, nutrition, education,
and employment. Under no circumstances have married females under the age of 18
given their implicit or explicit consent to engage in sexual behaviour.

Because a female under the age of 18 will face emotional and physiological
consequences, the marriage age is set at 18 years old. The vast majority of child
marriages result in unwanted pregnancies at such a young age, resulting in newborn
death and poor health for both the mother and her child.

Arguments by the Respondents-

They asserted that the country's economic and educational growth is stagnant and not
improving. They decided to preserve the age of 15 years indicated in Exception 2 to
Section 375 of the IPC in order to protect the rights of husband and wife in
criminalising sexual acts between them.According to a survey, 46% of women are
under the age of 18. There are also an estimated 23 million child brides in India. As a
result, criminalising marriage consummation and linking it to such a dreadful and
heinous crime as rape would be completely erroneous and impractical. Given India's
socioeconomic position, punishing child marriage under Exception 2 to Section 375 of
the IPC would be incorrect because it has long been a prevalent practise based on
cultural norms, basic facts, and tradition.

Recommendation was made to increase the age of the wife to 16 years old. This
proposal, however, was dropped. If the marriage was consummated at the age of 15,
simply because it was a custom should not be enough to convict the husband of rape.
Because it is needed that laws be produced in line with criteria that do not negatively
influence a certain class or group, taking into account social and historical traditions
and norms, the 15-year limits in Exception 2 to Section 375 of the IPC should be
maintained. Before assessing whether Exception 2 to Section 375 of the IPC is
arbitrary, it is necessary to establish whether a law, rule, or conduct can be declared
illegal simply because it is unconstitutional.One of the issues raised during the ruling
is whether the court is creating a new offence by partially or totally rejecting a certain
statute or rule. It does not suggest that the court cannot create a new offence, but there
is little doubt that the court is creating a new offence by partially invalidating Section
375 of the IPC.

Ratio Decendi:

Justice Madan Lokur asserted that a child is defined as a person under the age of 18
who is authorised to protect her human rights, including the right to live in dignity,
and that she must also be protected from domestic abuse. He referenced the 172nd
Report of the Law Commission of India, the Human Rights Council, the Protection of
Human Rights Act of 1993, and the Juvenile Justice Act of 2015.
If a female child's husband engages in sexual intercourse with her and commits a
penetrative sexual assault, he is guilty under the POCSO Act. This system of pro-child
law has exemption 2 of Section 375 IPC, which is not rape as defined by the
exception. Article 15(3) of the Constitution was established to empower women and
remove their socioeconomic disadvantage, which could contribute to gender equality.
Furthermore, Article 21 of the Indian Constitution clearly specifies a woman's
freedom to select her reproductive options as a "personal liberty." Rape should be
considered a heinous crime since it traumatises the victim and deprives her of the
ability to choose whether or not to have children. This merits careful thought and
debate. As a result, the POCSO Act and IPC requirements are in conflict. Thus, rape
of a married girl between the ages of 15 and 18 is not a crime under the IPC under
Exception 2 of Section 375; rather, it is a crime of aggravated penetrative sexual
assault under Section 5(n) of the POCSO Act and is punishable under Section 6 of the
POCSO Act.

Justice Deepak Gupta claimed articles 14 and 21 of the Indian Constitution are the
primary topics of contention in this issue. Because a person under the age of 18 is still
developing and does not grasp the consequences of his or her acts, the legislative
history makes it plainly clear that everyone under the age of 18 is a child. He went on
to explain that the legal age for marriage, as well as the age at which permission must
be provided under clause(6) of Section 375 IPC, is fully up to Parliament.

Furthermore, he voiced his opinion and agreed with Justice Madan that a girl under
the age of 15 who is compelled by her spouse to engage in sexual activity suffers
injury to her body and mind since they have not yet completely matured.

As a result, the state cannot be utilised to protect the tradition and sanctity of girl-child
marriage, which is a complete breach of Indian Constitution Articles 14, 15, and 21. In
terms of girl child difficulties, there are a few more variables that make Exemption 2
of Section 375 IPC completely discriminatory.
Judgement-

After considering the facts of the case and other factors relevant to the petition, both
judges concluded in separate judgements that Exception 2 of Section 375 of the Indian
Penal Code, 1860, as it relates to girl children under the age of 18, is liable to be
quashed because it is arbitrary and a violation of a girl child's rights that is not
plausible and equitable, and it also violates Articles 14 and 15 of the Constitution.
Furthermore, it violates POCSO's rules, which must be obeyed. Exception 2 to Section
375 of the IPC was decided to be read down because it is undesirable and
unconstitutional. The fact that there is already an offence under Section 375 of the IPC
and Sections 3 and 5 of the POCSO Act precludes the introduction of a new one. To
avoid the creation of new offences, the Supreme Court struck down Exception 2 to
Section 375 of the IPC.

Conclusion-

Through this petition, the Independent Thought case took a vital step towards
recognising the rights of the married girl child by giving this historic and landmark
ruling, which permitted the female child to live in a better, freer, and safer
environment. Finally, the court overruled Exception 2 to Section 375 of the IPC,
which previously shielded the husband from rape accusations and permitted him to
have intercourse with his wife with or without her agreement as long as she was over
the age of 15. As a result of the court's rejection of this exemption, having sexual
relations with a wife without her consent when she is beyond the age of 15 is now a
terrible felony.