INDEPENDENT THOUGHT V. UNION OF INDIA
(2017) 10 SCC 800
Ms Neha Thomas
Marriage is something most girls are taught to see as their future, something that is identified as life’s purpose, something that is considered as the epitome of embracing femineity on attaining adulthood. Sadly, for a lot of girls in the country, marriage becomes their purpose even before entering what is legally considered adulthood. On attaining puberty, girls are often married off to men way beyond their age groups. According to UNICEF reports, “27% of girls in India are married off before attaining the age of 18 and 7% are married off before attaining the age of 15.” Marriage life often turns out to be the exact opposite of the rosy picture that it is painted as to be. These girls, who are neither physically nor emotionally mature, are subjected to domestic violence and forced sexual intercourse; also known as marital rape.
The legislation of India neither criminalise marital rape nor do they invalidate these child marriages. Marital rape is considered a criminal offence only if the bride is below the age of 15.  This is known as the principle of marital rape immunity. ‘What if the bride is between 15 and 18? Does this immunity not extend to her?’ It was based on this question that Independent Thought, a child rights organisation, challenged the validity of exception 2 under Section 375 of the Indian Penal Code,1860, which states, “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” According to the argument put forward by the petitioner, this was a clear infringement of the right to equality of the brides between the ages of 15 and 18, as the principle of marital rape immunity did not extend to them. Therefore, a writ petition was filed in the Supreme Court of India. A division bench of the Supreme Court of India comprising Justice Madan B. Lokur and Justice Deepak Gupta delivered the landmark judgement in the case in 2017.
The writ petition challenged exception 2 under Section 375 of the Indian Penal Code. 18 years of age is considered as the minimum age required for granting sexual consent. Any act of sexual intercourse with a girl below the age of 18, be it consensual or non-consensual, is considered rape. This is in par with the definition of ‘child’ in the Protection of Child from Sexual Offences Act, 2012. However, the provisions under exception 2, Section 375 of the Indian Penal Code, 1860, guarantees the protection of law in case the husband engages in a non-consensual sexual intercourse with his wife, who is between the ages of 15 and 18, and, thus, cannot be punished by the law. The extension of the marital rape immunity to children who have not attained majority was unconstitutional according to the petitioner, and it takes away the right to dignity and also questions the bodily integrity of the girl child. The defendants, however, spoke in favour of the said provision and claimed, “criminalising marital rape would question the integrity of the institution of marriage”. The arguments of the defendants were on the grounds of the said exception ( under Section 375 of Indian Penal Code, 1860) being in consensus with tradition, culture, and customs.
There were three main issues raised in this case. The first one was whether sexual intercourse between a husband and his wife is rape in case the wife is between 18 and 15 years of age. The second issue raised was regarding whether exception 2 to Section 375 of the Indian Penal Code is violative of the right to equality. The third question was whether the court would create a new offence by the partial or full strike down of the exception 2 of Section 375 of the IPC.
The judgement in the Independent Thought v Union of India casecan be summarized into five major points. The main takeaway from the judgement was the idea that non-consensual sexual intercourse is rape in instances of child marriages. Non-consensual sex or marital rape in case of child marriages (i.e., when the bride is between the ages of 15 and 18) was violative of fundamental rights and human rights. The legislation regarding child marriage in the country are very vague in nature. This needs to be taken into cognizance, and necessary actions must be taken for the same. Tradition or customary practices is not a justification for rape. “Rape is rape, and consent is consent.” There is a lot of ambiguity in legislation in the area of human rights, especially, with regard to the primacy given to the personal law system.
The judgement stated, “There can be no doubt that if a girl child is forced by her husband into sexual intercourse against her will or without her consent, it would amount to a violation of her human right to liberty or dignity guaranteed by the Constitution.”. Using this, the Court amended exception 2 under Section 375 of the Indian Penal Code. Now it reads, “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”
In this judgement, the Court considered child marriage to be violative of the child’s fundamental and human rights. Child marriage in India is not invalid, rather it is voidable. Therefore, this practice is not necessarily illegal. The Prohibition of Child Marriages Act, 2006, considered child marriages to be voidable at the option of the contracting party. “Every child marriage, whether solemnised before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage: Provided that a petition for annulling a child marriage by a decree of nullity may be filed in the district court only by a contracting party to the marriage who was a child at the time of the marriage.” The Court held that this ambiguity is grossly misused, and as a result, child marriage is practiced, which denies the girl child equality in almost all spheres of life, be it political, economic, and even social. “Denying married girls certain rights, especially with regard to their sexual freedom, the Court held, would be ‘dilute’ the implementation of child marriage laws.” The Court also took into consideration the Juvenile Justice(Care and Protection of Children) Act, 2015, for arriving at this conclusion which states that “girl child below 18 years of age who is at an imminent risk of marriage needs appropriate care, protection, rehabilitation and restoration as just because she is married, she doesn’t lose her status as a child.”
The Court drew light towards the lacunae in the existing child marriage legislation. It also did take into consideration and applauded the decision of the Karnataka Government to declare all child marriages void.The Court called for proper implementation of the existing legislation at both the central and state levels, to put an end to this social evil. The judgement stated, “Welfare schemes and catchy slogans…must be backed up by focused implementation programmes [and] other positive and remedial action”. This very well shows the Court’s stance on the issue of implementation of the legislation. The Court also called for the harmonising legal framework. Legislation like the Prohibition of Child Marriage Act, 2006, are based on the personal law system and give religious practices more prominence than human rights. This leads to a lot of ambiguity. The Court held that the legislation should be enacted in such a way that it does not interfere with the basic human and fundamental rights of a child. In the given case, the Court placed more prominence on the Juvenile Justice (Care and Protection of Children) Act, 2015. The constitutionality of exception 2, Section 375 of the IPC was another major point that the Court raised. The Court rejected the claim of the defence that the exception in question was valid as it was based on tradition. The Court held, “times and situations change, so must views, traditions, and conventions,” and affirmed that “constitutional morality” requires preventing the “endangerment of girls”. Tradition cannot be considered as an excuse, for any practice that is harmful to the life and health of children.
The Court based its judgement on other legislation, such as the Protection of Children from Sexual Offences Act, 2012, and various constitutional provisions. The Protection of Children from Sexual Offences Act, 2012, states, “whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child commits the offence of aggravated penetrative sexual assault.”The POCSO Act was drafted based on the provisions of the Constitution of India, which state, “Nothing in this article shall prevent the State from making any special provisions for women and children.”The Protection of Children from Sexual Offences Act, 2012, will, therefore, have an overriding effect over exception 2 given under Section 375 of the Indian Penal Code, due to its constitutional guarantee.
The Court also stated that exception 2, Section 375 of the Indian Penal Code, 1860, was in clear violation of Article 14, 15, and 21 of the Indian Constitution. The provisions of Article 14 were violated, as an unmarried girl child, once subjected to non-consensual intercourse, can claim remedy, but the same rule cannot be applied to a married girl child. This was violative of the right to equality that is guaranteed under Article 14. Article 15 was violated with regard to the fact that the Indian Penal Code was overriding the provisions of the protection of Children from Sexual Offences Act, 2012. The exception in question, given under Section 375 of the IPC was also violative of Article 21, Right to life and personal liberty, which is inclusive of right to dignity.
The Court did not take down exception 2, Section 375 of the IPC but on the contrary, amended it. The amended exception reads, “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.” By doing so, the Court did not create a new offence, rather amended the existing offence. The principle of marital rape immunity was now extended to any male whose wife was above the age of 18. Therefore, marital rape would be considered a criminal offence only if the wife was a minor as defined under the Protection of Children from Sexual Offences Act, 2012.
This judgement was one of the instances where the judiciary gave more importance to human rights over traditions and took the stand that human rights violations, such as this case, cannot be justified under the pretext of tradition. However, this judgement overlooks the concept of marital rape as a whole and rather constricts itself to the narrow viewpoint of marital rape in cases where the wife is a minor. The marital rape immunity that is provided in cases of marriages where the wife has attained majority is also violative of the fundamental rights, i.e., Article 14, Article 15, and Article 21. The Court failed to see that marital rape is not an offence that children alone face. Marital rape is a sad reality to around 60% of the married women in the country. Bodily integrity of women who are coerced or forced to have sexual intercourse with their husbands is also compromised. The Court did not address this issue in the given case and rather ignored it. The judgement also overlooks instances where the husband is a minor. The judgement only deals with instances of a child bride. The concept of consent should not be gender-specific. The judgement, therefore, though definitely takes a step forward in terms of child rights especially rights of the girl child, turns a blind eye towards the offence of marital rape that many married women are victims of. The Court, however, did clarify regarding the issues with respect to the ambiguity of legislation where there is a clash between human rights and the personal law systems. This is a landmark judgement, as it is a clear example of the increasing importance placed on human rights in the country.
 Neeta Lal, “Early Marriages in India: No Child’s Play”; The Diplomat;(September 8 2020)
 Indian Penal Code,1860; Section 375; Exception 2
 Constitution of India; Article 32 A
 Protection of Children from Sexual Offences Act, 2012; Section 2 (d)
 Independent Thought, Supra 1
 Sahil Azam; “Refusal to recognise Marital Rape implies we value institution of marriage over lives of women”; Youth ki Awaaz; (October 8, 2019);
 Independent Thought, Supra 1
 Prohibition of Child Marriages Act,2006; Section 3
 Independent Thought, Supra 1
 Juvenile Justice (Care and Protection of Children) Act, 2015; Section 5
 Prohibition of Child Marriage (Karnataka Amendment Act), 2016
 Independent Thought, Supra 1
 Protection of Children from Sexual Offences Act, 2012; Section 5 (iv) (n)
 Constitution of India; Article 15, Clause 3
 Danial Latifi v Union of India, (2001) 7 SCC 740
 Independent Thought, Supra 1
 Supra 6
 Roli Srivastava; “Marital Rape: the statistics show how real it is” (September 16,2016); https://www.thehindu.com/news/cities/mumbai/Marital-rape-the-statistics-show-how-real-it-is/article14410173.ece