# INDEPENDENT THOUGHT v. UNION OF INDIA & ANR

- **Citation:** [2017] 13 S.C.R. 821
- **Court:** Supreme Court of India
- **Decided:** 2017
- **Bench:** Madan B. Lokur, Deepak Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/independent-thought-v-union-of-india-anr-31940
- **Pages:** 100

## Headnote

Penal Code, 1860 - Exception 2 to s.375:
A
B
Sexual intercourse between a man and his wife being a girl
between 15 and 18 years of age - Rape or not - Held: Sexual
C
intercourse with a girl below 18 years of age is rape regardless of
whether she is married or not - Exception carved out in the Penal
Code 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 lo be achieved - The
D
artificial distinction is arbitrary, discriminatory and not in the
interest of girl child and contrary lo the Arts.15(3), 21 of the
Constitution and commitments made in international conventions -
Human Rights - Children -Married girl child.
Whether there is any incongmi(v between the Exception 2 to
s.375 of the /PC ands. 5(n) of the POCSO Act and which provision
overrides the other - Held: There is an apparent conflict or
incongmi(v between the provisions of Penal Code and the POCSO
Act - Whatever be the explanation, given the context and purpose
of their enactment, primacy must be given to pro-child statutes over
the /PC as provided for in ss. 5, 41 of the !PC-Further, as provided
in s.42A of POCSO. in case of an inconsistency between POCSO
and any other law, POCSO will prevail - Statutes concerning the
rights of the children are special laws concerning a special subject
E
F
of legislation and therefore the provisions of such subject-specific
legislation must prevail and take precedence over the provisions of
a general law such as the /PC - There can be no other opinion
G
regarding the pro-child slant of JJ Act as well as the POCSO Act -
Protection of Children from Sexual Offences Act, 2012(POCSO) -
ss.5(n),42 - Juvenile Justice (Care and Protection of Children) Act,
2015.
821
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SUPREME COURT REPORTS
[2017] 13 S.C.R.
Interpretation of Statutes: Harmonious and Purposive
Construction - Held: Exception 2 to s.375 of Penal Code to be
read 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 - Therefore, to harmonize system of
laws relating to children, Exception 2 to s.375 of the !PC now
required to be meaning/idly read as: "Sexual intercourse or sexual
acts by a man with his own wife. the wife not being under eighteen
years ~f age, is not rape".
Crime Against Women: Rape - Held: A rapist remains a rapist
and marriage with the victim does not convert him into a non-rapist
- Similarly, a rape is a rape whether it is described as such or is
described as penetrative sexual assault or aggravated penetrative
sexual assault - A rape that actually occurs cannot be legislatively
be simply whisked away or legislatively denied as non-existent.
Constitution of India :
Art. 15(3) - Spirit of - Held: Art. 15(3) cannot and ought not
to be interpreted restrictively but must be given its fi11/ play - From
this perspective, it is clear that 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.
Art.21 - "right to life" - Held (Per Deepak Gupta, J.): The
right to life envisaged in Art.21 is not merely a right to live an animal
existence - This Court has repeatedly held that right to life means a
right to live with human dignity - In case of minor girl, it would
mean her right to grow and develop physically. mentally and
economically as an independent self sufficient female adult.
Art.14 - Exception 2 to s.375 on the touchstone of Art. 14 -
Held: (Per Deepak Gupta, J.) When the State on 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
achieve

## Text

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[2017] 13 S.C.R. 821
INDEPENDENT THOUGHT
V.
UNION OF INDIA & ANR.
(Writ Petition (Civil) No. 382 of20!3)
OCTOBER II, 2017
[MADAN B. LOKUR AND DEEPAK GUPTA, JJ.)
Penal Code, 1860 - Exception 2 to s.375:
A
B
Sexual intercourse between a man and his wife being a girl
between 15 and 18 years of age - Rape or not - Held: Sexual
C
intercourse with a girl below 18 years of age is rape regardless of
whether she is married or not - Exception carved out in the Penal
Code 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 lo be achieved - The
D
artificial distinction is arbitrary, discriminatory and not in the
interest of girl child and contrary lo the Arts.15(3), 21 of the
Constitution and commitments made in international conventions -
Human Rights - Children -Married girl child.
Whether there is any incongmi(v between the Exception 2 to
s.375 of the /PC ands. 5(n) of the POCSO Act and which provision
overrides the other - Held: There is an apparent conflict or
incongmi(v between the provisions of Penal Code and the POCSO
Act - Whatever be the explanation, given the context and purpose
of their enactment, primacy must be given to pro-child statutes over
the /PC as provided for in ss. 5, 41 of the !PC-Further, as provided
in s.42A of POCSO. in case of an inconsistency between POCSO
and any other law, POCSO will prevail - Statutes concerning the
rights of the children are special laws concerning a special subject
E
F
of legislation and therefore the provisions of such subject-specific
legislation must prevail and take precedence over the provisions of
a general law such as the /PC - There can be no other opinion
G
regarding the pro-child slant of JJ Act as well as the POCSO Act -
Protection of Children from Sexual Offences Act, 2012(POCSO) -
ss.5(n),42 - Juvenile Justice (Care and Protection of Children) Act,
2015.
821
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B
c
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SUPREME COURT REPORTS
[2017] 13 S.C.R.
Interpretation of Statutes: Harmonious and Purposive
Construction - Held: Exception 2 to s.375 of Penal Code to be
read 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 - Therefore, to harmonize system of
laws relating to children, Exception 2 to s.375 of the !PC now
required to be meaning/idly read as: "Sexual intercourse or sexual
acts by a man with his own wife. the wife not being under eighteen
years ~f age, is not rape".
Crime Against Women: Rape - Held: A rapist remains a rapist
and marriage with the victim does not convert him into a non-rapist
- Similarly, a rape is a rape whether it is described as such or is
described as penetrative sexual assault or aggravated penetrative
sexual assault - A rape that actually occurs cannot be legislatively
be simply whisked away or legislatively denied as non-existent.
Constitution of India :
Art. 15(3) - Spirit of - Held: Art. 15(3) cannot and ought not
to be interpreted restrictively but must be given its fi11/ play - From
this perspective, it is clear that 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.
Art.21 - "right to life" - Held (Per Deepak Gupta, J.): The
right to life envisaged in Art.21 is not merely a right to live an animal
existence - This Court has repeatedly held that right to life means a
right to live with human dignity - In case of minor girl, it would
mean her right to grow and develop physically. mentally and
economically as an independent self sufficient female adult.
Art.14 - Exception 2 to s.375 on the touchstone of Art. 14 -
Held: (Per Deepak Gupta, J.) When the State on 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 - Further, the husband is not given the immunity in any
other penal provision except in Exception 2 to s.375 - It does not
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR.
823
stand to reason that only for the offence of rape the husband should A
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 s.375 is. ther4ore, discriminatory and violative of
Art.14 of the Constitution.
B
Constitutional validity ~flaw - Held (Per Deepak Gupta, J.):
There are se!f imposed limitations laid down by the Court while
deciding the issue whether a law is constitutional or not - If the
legislature enacts a law which is violative of the fimdamental 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 C
down the law in such a manner that it falls within the four corners
of the Constitution.
Prohibition of Child Marriage Act, 2006 (PCMA) - Scope
and amplitude of - Held (Per Deepak Gupta, J.): PCMA is a secular
Act- It being a special Act dealing with children, the provision of D
this Act will prevail over the provisions of both the Hindu Marriage
Act, 1955, Muslim Marriages and Divorce Act, 1939 in so far as
children are concerned.
Interpreting the provisions, the Court
HELD: Per Madan B. Lokur, J.:
Whether sexual intercourse between a man and his wife being a
girl between 15 and 18 years of age is rape?
1. Exception 2 to Section 375 of the Indian Penal Code,
1860 (the IPC) answers this in the negative, but 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 the
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
i'. < . .,., \Pl!,_;.,.,
land ,f?T.'H,i,~p:tf,~ts made in international conventions. It is also
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SUPREME COURT REPORTS
[2017] 13 S.C.R.
contrary to the philosophy behind some statutes, the bodily
integrity of the girl child and her reproductive choice. [Para 1)
[834-F-H; 835-A)
2. Section 375 of the 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 of the IPC (nonconsensual sexual intercourse). [Para 31] [847-E-J<')
3. 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 the
IPC since such non-consensual sexual intercourse is not rape
for the purposes of Section 375 of the IPC. On the other hand,
Section 3 of the Protection of Children from Sexual Offences Act,
2012 defines "penetrative sexual assault". Clause (n) of Section
5 provides that if a person commits penetrative sexual assault
with a child, then that person actually commits aggravated
penetrath1e sexual assault if that person is related to the child,
inter alia, through marriage. Therefore, if the husband of a girl
child commits penetrative sexual assault on his wife, he actually
commits aggravated penetrative sexual assault as defined in
Section 5(n) of the POCSO Act. [Paras 32 and 45) [847-G-H;
851-F-H]
4. The duality therefore is that having sexual intercourse
with a girl child between 15 and 18 years of age, the husband of
the girl child is said to have not committed rape as defined in
Section 375 of the IPC but is said to have committed aggravated
penetrative sexual assault in terms of Section 5(n) of the POCSO
Act. [Para 46) [852-A-B]
5. At this stage it is necessary to refer to Section 42-A
inserted in the POCSO Act by an amendment made on 3rd
February, 2013. The consequence of this amendment is that the
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR.
provisions of the POCSO Act will override the provisions of any
other law (including the IPC) to the extent of any inconsistency.
[Para 48) [853-B-DJ
Whether there is any incongruity between Exception 2 to Section
375 of the IPC and Section 5(n) of the POCSO Act and which
provision overrides the other?
6. There is an apparent conflict or incongruity between the
provisions of the 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 the IPC and therefore not an offence in view of Exception
2 to Section 375 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. This conflict or
incongruity needs to be resolved in the best interest of the girl
child and the provisions of various complementary statutes need
to be harmonized and read purposively to present an articulate
whole. [Para 74) 1864-A-CJ
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7. Whatever be the explanation, given the context and
purpose of their enactment, primacy must be given to pro-child
statutes over the IPC as provided for in Sections 5 and 41 of the
IPC. There are several reasons for this including the absence of
any rationale in creating an artificial distinction, in relation to
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sexual offences, between a married girl child and an unmarried
girl child. 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 the
p
IPC. It must also be remembered that the provisions of the
Juvenile Justice (Care and Protection of Children) Act, 2015 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. The interpretation of Article
15(3) of the Constitution in a manner that is affirmative, in favour
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of children and for children and adverted to the discussion in the
Constituent Assembly in this regard. There can therefore be no
other opinion regarding the pro-child slant of the JJ Act as well
as the POCSO Act. [Para 93) 1872-G-H; 873-A-B)
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SUPREME COURT REPORTS
[2017] 13 S.C.R.
8, 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 95] (875-B-C]
9. In the present context, section 42 -A of POCSO Act is
very significant and holds much greater importance. Section 42A of the POC$0 Act 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 the 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 the IPC decriminalizes 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. [Para 97)(875-G-H; 876-A]
10. The ~ntire issue of the interpretation of the JJ Act, the
POCSO Act, the PCMA and Exception 2 to Section 375 of the
IPC Cl\n be looked at from yet another perspective, the
perspective of purposive and harmonious construction of statutes
relating to the same subject matter. [Para 99] [876-F-G]
11. 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. [Para 102] [878-C-D].
12. On a complete assessment of the law and the
documentary material, it appears that there are really five options
before Court: (i) To let the incongruity remain as it is - this does
not seem a viable option to us, given that the lives of thousands
of young girls are at stake; (ii) To strike down as unconstitutional
Exception 2 to Section 375 of the 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
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR.
827
ultimately be for Parliament to decide; (iv) To bring the POCSO A
Act in consonance with Exception 2 to Section 375 of the 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
of the IPC in a purposive manner to make it in consonance with
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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 no other option but to harmonize
the system of laws relating to children and require Exception 2
to Section 375 of the IPC to now be meaningfully read as: "Sexual
C
intercourse or sexual acts by a man with his own wife, the wife
not being under eighteen years of age, is not rape." [Para 1051
[878-G-H; 879-A-D)
Life Insurance Corporation of India v. D.J. Bahadur
(1981) 1 SCC 315 : [19811 1SCR1083; Collector of
Customs v. Digvijaya Singhji Spinning & Weaving Mills
AIR 1961 SC 1549 : [19621 SCR 896; Abhiram Singh
v. CD. Commachen (2017) 2 SCC 629 : [20171 1 SCR
158 - relied on.
Sri Mahadeb Jiew v. Dr. B.B. Sen AIR 1951 Cal 563;
Government of A.P. v. P.B. Vijayakumar (1995) 4 SCC
520: [199511 Suppl. SCR 462; Yusuf Abdul Aziz v. State
of Bombay [19541 SCR 930; Cyril Britto v. Union of
India AIR 2003 Ker 259; State of Maharashtra v.
Madhukar Narayan Mardikar (1991) 1 SCC 57;
Suchita Srivastava v. Chandigarh Administration (2009)
9 SCC 1; Se/vi v. State of Karnataka (2010) 7 SCC 263
: [2010] 5 SCR 381; Ritesh Sinha v. State of Uttar
Pradesh (2013) 2 SCC 357 : [2012) 11 SCR 683;
Devika Biswas v. Union of India (2016) 10 SCC 726;
State of Karnataka v Krishnappa (2000) 4 SCC 75 :
[2000] 2 SCR 761; Bodhisattwa Gautam v. Subhra
Chakraborty (1996) 1 SCC 490 : [19951 6 Suppl.
SCR 731; State of Punjab v. Gurmit Singh (1996) 2 SCC
384 : [1996] 1 SCR 532; State of Haryana v. Janak
Singh (2013) 9 sec 431 : [2013] 5 scR 1144;
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SUPREME COURT REPORTS
(2017] 13 S.C.R.
Eisenst'adt v. Baird 405 US 438; State of Madhya
Pradesh v. Bhopal Sugar Industries Ltd. [1964] 6 SCR
846; Ra,ttan Arya v. State of Tamil Nadu (1986) 3 SCC
385 : [1986] 2 SCR 596; Anuj Garg v. Hotel Association
of India (2008) 3 SCC 1 : [2007] 12 SCR 991;
Sutyawl!lti Sharma v. Union of India (2008) 5 SCC 287
: [2008) 6 SCR 566; Seaford Court Estates Ltd. v. Asher
) 1949 [ 2 K.B. 481; Jugal Kishore v. State of
Maharashtra (1989) Supp (1) SCC 589 : [1988]
3 Suppl. SCR 270 - referred to.
Law Commission of India - 8/h and I 72nd Reports -
referred to.
National Charter for Children, 2003: National Policy
for Children; National Plan of Action for Children,
2016: Safe Children- Happy Childhood; Study on Child
Abuse: India 2007;Convention on Elimination of All
Forms of Discrimination Against Women and Convention
on the Rights of the Child - referred to.
Per Deepak Gupta, J.:(Concurring)
Whether Exfeption 2 to Section 375 of the Indian Penal Code, in
so far as it r\'.lates to girls aged 15 to 18 years, is unconstitutional
and liable to be struck down?
1. The principle is that normally the Courts should raise a
presumption in favour of the impugned law; 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. [Para 59] [906-G-H; 907-A-B]
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR.
829
2. Law cannot be hidebound and static. It has to evolve A
and change with the needs of the society. Recognising these
factors, the Parliament increased the minimum age for marriage.
The Parliament also increased the minimum age of consent but
the inaction in raising the age in Exception 2 is by itself an
arbitrary non-exercise of power. When the age was being raised
in all other laws, the age under Exception 2 should also have
been raised to bring it in line with the evolving laws especially
the laws to protect women and the girl child aged below 18 years.
Therefore, there is no hesitation in holding that the Exception
2, in so far 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. [Para 74] [913-G-H; 914-A]
3. 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 in so far as it relates to girls below 18 years is
discriminatory and violative of Article 14 of the Constitution. [Para
76] [915-E-F]
4. 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
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, 354A, 354B, 354C, 354D of the 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.
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SUPREME COURT REPORTS
[2017] 13 S.C.R.
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 !loes not stand to reason that only for the offence of
rape lhe husJl>and should be granted such an immunity especially
where the "victim wife" is aged below 18 years i.e. below the
legal age of 111arriage and is also not legally capable of giving
consent to h•ve sexual intercourse. Exception 2 to Section 375
IPC is, therefore, discriminatory and violative of Article 14 of
the Constitu~ion of India, on this count also. [Para 77) [9I5-F-H;
916-A-D)
5. Section 42 of POCSO, makes it clear that where an
offence is punishable, both under POCSO 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
jurisprudenQe that if two punishments are provided, then the
benefit of th¢ lower punishment should be given to the offender.
The Iegislattjre knowingly introduced Section 42 of POCSO to
protect the h)terests of the child. As the objects and reasons of
the POCSO &how, this Act was enacted as a special provision for
protection of ~hildren, with a view to ensure that children of tender
age are not 11bused during their childhood and youth. These
children were to be protected from exploitation and given facilities
to develop in a healthy manner. When a girl is married at the age
of 15 years, it is not only her human right of choice, which is
violated. She is also deprived of having an education; she is
deprived of leading a youthful life. Early marriage and
consummation of child marriage affects the health of the girl child.
All these ill effects of early marriage have been recognised by
the Government of India in its own documents.
[Para 79) [916G-H; 917-A-B]
6. Section 42A of POCSO 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 POCSO
are in addithm to and not above any other law. However, the
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR.
831
second part of Section 42A provides that in case of any
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inconsistency between the provisions of POCSO and any other
law, then it is the provisions of POCSO, which will have an
overriding effect to the extent of inconsistency. POCSO defines
a child to be a person below the age of 18 years. Penetrative
sexual assault and aggravated penetrative sexual assault have
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been defined in Section 3 and Section 5 of POCSO. Provisions of
Section 3 and 5 are by and large similar to Section 375 and Section
376 of IPC. Section 3 of the POCSO is identical to the opening
portion of Section 375 of IPC whereas Section 5 of POCSO is
similar to Section 376(2) of the IPC. Exception 2 to Section 375
of IPC, which makes sexual intercourse or acts of consensual
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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 POCSO. Therefore,
this is a major inconsistency between POCSO and IPC. As
provided in Section 42A, in case of such an inconsistency, POCSO
will prevail. Moreover, POCSO is a special Act, dealing with the D
children whereas IPC is the general criminal law. Therefore,
POCSO will prevail over IPC and Exception 2 in so far as it relates
to children, is inconsistent with POCSO. [Para 801 1917-C-FI
7. Exception 2 to Section 375 IPC in so far 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
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the rights of the girl child and not fair, just and reasonable and,
therefore, violative of Article 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 POCSO, which must prevail. Therefore, Exception 2 to s.375
IPC is read down as follows: "Sexual intercourse or sexual acts
by a man with his own wife, the wife not being 18 years, is not
rape". However, this judgment will have prospective effect. (Para
881 [919-E-H; 920-A-B]
Sub-Divisional Magistrate v. Ram Kali [1968] 1 SCR
205; Pathumma & Ors. v. State of Kera/a & Ors. (1978)
2 SCC 1 : [1978] 2 SCR 537; Government of A.P. v.
P. Laxmi Devi (2008) 4 SCC 720 : [20081 3 SCR 330;
Subramanian Swamy v. Director. CBI (2014) 8 SCC
682: (2014] 6 SCR 873; State of Punjab v. Khan Chand
(1974) 1 SCC 549 : [1974] 2 SCR 768 - relied on.
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Association for Social Justice & Research v. Union of
India & Ors. (2010) 118 DRJ 324 (DB); Court on its
own motion (Lajja Devi) & Ors. v. State & Ors. T
Sivakumar v. Inspector of Police HCP No. 382 of 2013;
Indira Nehni Gandhi v. Raj Narain (1975) Suppl SCC
1: [19761 SCR 347; Keshavananda Bharati v. State of
Kera/a (1973) 4 SCC 225: [19731 Suppl. SCR l; E.P.
Royappa v. State of Tamil Nadu (1974) 4 SCC 3 : 119741
2 SCR 348 Maneka Gandhi v. Union of India (1978) 1
SCC 248 : [19781 2 SCR 621; A.L. Katra v. Project
and Equipment Corpn. (1984) 3 SCC 316 : [19841 3
SCR 646; Babita Prasad v. State ofBihar (1993) Suppl.
(3) SCC 268 : [19921 3 Suppl. SCR 438; Ajay Hasia v.
Khalid Mujib Sehravardi (1981) I SCC 722 : [19811 2
SCR 79; Dr. K.R. Lakshmanan v. State of Tamil Nadu
(1996) 2 SCC 226 : [19961 1 SCR 395; State of A.P. v.
McDowell & Co. (1996) 3 SCC 709 : 1996 (3)
SCR 721; Shayara Bano v. Union of India &
Ors. (2017) 9 SCC 1; Vishakha v. State of Rajasthan
(1997) 6 SCC 241 : [19971 3 Suppl. SCR 404; Reg v.
Clarence (1888) 22 Q.B.D. 23; Rex v. Clarke (1949) 2
All.E.R.448; Justice K.S. Puttaswamy (Reid.} & Am: v.
Union of India and Ors. (2017) 10 SCALE 1-referred
to.
Case Law Reference
In the Judgment of Madan B. Lokur, J.:
AIR 1951 Cal 563
referred to
Para 54
[19951 1 Suppl. SCR 462
referred to
Para 55
[19541 SCR 930
referred to
Para 57
AIR 2003 Ker 259
referred to
Para 57
(1991) 1 sec 57
referred to
Para 59
c2009) 9 sec 1
referred to
Para 60
[2010[ 5 SCR 381
referred to
Para 61
[20121 11 SCR 683
referred to
Para 62
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR.
833
c2016) 10 sec 126
referred to
Para 63
A
[2000] 2 SCR 761
referred to
Para 66
[19951 6 Suppl. SCR 731
referred to
Para 67
(19961 1 SCR 532
referred to
Para 68
(20131 5 SCR 1144
referred to
Para 69
B
405 us 438
referred to
Para 72
[1964] 6 SCR 846
referred to
Para 83
[19861 2 SCR 596
referred to
Para 84
[20071 12 SCR 991
referred to
Para 85
c
[2008] 6 SCR 566
referred to
Para 86
[19811 1 SCR 1083
relied on
Para 94
[19491 2 K.B. 481
referred to
Para 99
[19621 SCR 896
relied on
D
Para 100
[19881 3 Suppl. SCR 270
referred to
ParalOl
[20171 1SCR158
relied on
Para 102
In the Judgment of Deepak Gupta, J.:
E
(2010) 118 DRJ 324 (DB
referred to
Para 41
HCP No.382 of 2013
referred to
Para 43
[1968] 1 SCR 205
relied on
Para 53
[19781 2 SCR 537
relied on
Para 54
F
(2008] 3 SCR 330
relied on
Para 55
[2014) 6 SCR 873
relied on
Para 56
(19741 2 SCR 768
relied on
Para 58
(1976) SCR 347
referred to
Para 62
G
(1973) Suppl. SCR 1
referred to
Para 62
(1974] 2 SCR 348
referred to
Para 63
11978) 2 SCR 621
referred to
Para 64
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A
[19841 3 SCR 646
referred to
Para 65
119921 3 Suppl. SCR 438
referred to
Para 65
(19811 2 SCR 79
referred to
Para 65
[1996] 1 SCR 395
referred to
Para 65
B
[19961 3 SCR 721
referred to
Para 66
(2017) 9 sec 1
referred to
Para 66
[1997] 3 Suppl. SCR 404
referred to
Para 71
(1888) 22 Q.B.D. 23
referred to
Para 84
c
(1949) 2 All.E.R.448
referred to
Para 84
(2017) 10 SCALE 1
referred to
Para 86
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
382 of2013
D
Under Article 32 of the Constitution of India.
Rana Mukherjee, Sr. Adv., Gaurav Agrawal, Abhikalp Pratap
Singh, Abbay Anturkar, Vikram Srivastava, Ms. Binn Tamta, Shalinder
Saini, Ms. Sadhana Sandhu, B. V. Balaram Das, Gurmeet Singh Makker,
Ms. Daisy Hannah, Ms. Kasturika Kaumudi, B. Krishna Prasad,
E
Ms. Jayna Kothari, Ms. Disha Chaudhari, Ms. Anindita Pujari, Ms. Kavita
Bhardwaj, Advs. for the appearing parties.
The Judgments of the Court were delivered by
MADAN B. LOKUR, J. l. The issue before us is limited but
one of considerable public importance - whether sexual intercourse
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between a man and his wife being a girl between 15 and 18 years of age
is rape~ Exception 2 to Section 3 75 of the Indian Penal Code, 1860 (the
IPC) answers this in the negative, but in our opinion 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 the !PC creates an
unnecessary and artificial distinction between a married girl child and an
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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
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Constitution and our commitments in international conventions. It is also
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR.
835
[MADAN B. LOKUR, J.]
contrary to the philosophy behind some statutes, the bodily integrity of A
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.
2. We make it clear that we have refrained from making any
B
observation with regard to the marital rape of a woman who is 18 years
of age and above since that issue is not before us at all. Therefore we
should not be understood to advert to that issue even collaterally.
The writ petition
3. The petitioner is a society registered on 6th August, 2009 and
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has since been working in the area of child rights. The society provides
technical and hand-holding support to non-governmental organizations
as also to government and multilateral bodies in several States in India.
It has also been involved in legal intervention, research and training on
issues concerning children and their rights. The society has filed a petition
D
under Article 32 of the Constitution in public interest with a view to draw
attention to the violation of the rights of girls who are married between
the ages of 15 and 18 years.
4. According to the petitioner, Section 375 of the IPC prescribes
the age of consent for sexual intercourse as 18 years meaning thereby
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that any person having sexual intercourse with a girl child below 18
years of age would be statutorily guilty of rape even if the sexual activity
was with her consent. Almost every statute in India recognizes that a
girl below 18 years of age is a child and it is for this reason that the law
penalizes sexual intercourse with a girl who is below 18 years of age.
Unfortunately, by virtue of Exception 2 to Section 375 of the IPC, ifa
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girl child between 15 and 18 years of age is married, her husband can
have non-consensual sexual intercourse with her, without being penalized
under the IPC, only because she is married to him and for no other
reason. The right of such a girl child to bodily integrity and to decline to
have sexual intercourse with her husband has been statutorily taken
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away and non-consensual sexual intercourse with her husband is not an
offence under the !PC.
5. Learned counsel for the petitioner submitted that absolutely
nothing is achieved by entitling the husband of a girl child between 15
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SUPREME COURT REPORTS
[2017] 13 S.C.R.
and 18 years, of age to have non-consensual sexual intercourse with her.
It was also submitted that whatever be the (unclear) objective sought to
be achieved by this, the marital status of the girl chi Id between 15 and 18
years of age has no rational nexus with that unclear object. Moreover,
merely because a girl child between 15 and 18 years of age is married
does not result in her ceasing to be a child or being mentally or physically
capable of having sexual intercourse or indulging in any other sexual
activity and conjugal relations. It was submitted that to this extent
Exception 2 to Section 375 of the !PC is not only arbitrary but is also
discriminatory and contrary to the beneficial intent of Article 15(3) of
the Constitution which enables Parliament to make special provision for
women and children. In fact, by enacting Exception 2 to Section 375 of
the !PC in the statute book, the girl child is placed at a great disadvantage,
contrary to the visionary and beneficent philosophy propounded by Article
15(3) of the Constitution.
Law Commission of India - 84 th Report
6. Learned counsel for the petitioner drew our attention to the
84 th report of the Law Commission of India (LC!) presented on 25th
April, 1980 dealing with the rape of a girl child below the prescribed
minimum age. The report considered the anomalies in the law relating to
rape, particularly in the context of the age of consent for sexual intercourse
with a girl child. The view expressed by the LC! is quite explicit and is to
be found in paragraph 2.18, 2.19 and 2.20 of the report. The view is that
since the Child Marriage Restraint Act, 1929 prohibits the marriage ofa
girl below 18 years of age, sexual intercourse with a girl child below 18
years of agtl should also be prohibited and the !PC should reflect that
position thereby making sexual intercourse with a girl child below 18
years of age an offence. These paragraphs read as follows:
2.18. Section 375, fifth clause. - The discussion in the few
preceding paragraphs was concerned with rape constituted by
sexual intercourse without consent. The fifth clause of section
3 75 may now be considered. It is concerned with sexual
intercourse with a woman under 16 years of age. Such sexual
intercourse is an offence irrespective of the consent of the woman.
2.19. History. - The age of consent has been subjected to
increase more than once in India. The historical development
may, for convenience, be indicated in the forrn of a chart as
follows:-
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR.
837
[MADAN B. LOKUR, J.]
A
Year
Age of consent
Age
Minimum
under sec.
mentioned in
age of
375, 5'" clause,
the Exception
marriage
I.P.C.
to sec. 375,
under the
I.P.C
Child
Marriage
Restraint
B
Act, 1929
1860 ......
l 0 years
10 years
-
l89l(Actl0of
12 years
12 years
-
189 l)
c
(after the
amendment of
l.P.C.
1925 (after the
l 4 years
13 years
-
D
amendment of
l.P.C.)
l 929 (after the
14 years
13 years
14 years
passing of the
Child Marriage
E
Act)
l 940 (after the
16 years
15 years
15 years
amendment of
the Penal Code
and the Child
Marriage Act)
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1978 ......
16 years
15 years
18 years
[as of2017]*
(Age of
[15 years]
[Minimum
consent under
age of
*The bracketed
Sec. 375,
marriage
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portion in this
Sixthly of the
under the
row has been
!PC - 18 years]
PCMA,2006
inserted by us.
-
l 8(F)/2 l (M)
years]
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2.20. Increase in minimum age. - The question to be considered
is whether the age should be increased to 18 years. The minimum
age of marriage now laid down by law (after 1978) is 18 years in
the case of females and the relevant clause of Section 375 should
reflect this changed attitude. Since marriage with a girl below
18 years is prohibited (though it is not void as a matter of
personal law), sexual intercourse with a girl below 18 years
should also be prohibited. (Emphasis supplied by us).
Law Commission of India - 172nd Report
7. The issue was re-considered by the LC! in its 172nd report
presented on 25th March, 2000. In that report, it is recommended that
an exception be added to Section 375 of the !PC to the effect that sexual
intercourse by a man with his own wife, the wife not being under 16
years of age, is not sexual assault. In other words, the earlier
recommendation made by the LC! was not approved.
8. Apparently at the stage of discussions, the recommendation of
the LC! (still at the stage of proposal) did not find favour with an NGO
called Saks hi who suggested deletion of the exception. According to the
NGO, "wher~ a husband causes some physical injury to his wife, he is
punishable under the appropriate offence and the fact that he is the
husband of the victim is not an extenuating circumstance recognized by
law." Therefore, there is no reason why a concession should be made in
the matter of an offence of rape/sexual assault only because the wife
happens to be above 15/16 years of age. The LC! did not agree with the
NGO and the reason given is that ifthe exception that is recommended
is deleted, it '"may amount to excessive interference with the marital
relationship." In other words, according to the LC! the husband ofa girl
child who is not below 16 years of age can sexually assault and even
rape his wife and the assault or rape would not be punishable - and if it
is made punishable, then it would amount to excessive interference with
the marital relationship. (It may be mentioned that Exception 2 to Section
3 7 5 of the !PC has not increased the age to 16 years from 15 years as
G
recommended by the LC! but has retained it at 15 years. According to
the counter affidavit filed on behalfofthe Union oflndia, the age of 15
years has been kept to give protection to the husband and the wife against
criminalizing the sexual activity between them).
H
INDEPENDENT THOUGHT v. UNION OF INDIA & ANR.
839
[MADAN B. LOKUR, J.]
Counter affidavit of the Union of India
A
9. Since we have adverted to the counter affidavit filed by the
Union of India opposing the writ petition, we propose to make a very
brief reference to it. A somewhat more detailed reference is made to
the counter affidavit of the Union of India at a later stage.
I 0. For the present, the counter affidavit of the Union of India
refers to the National Family Health Survey- 3 (of 2005) in which it is
stated that 46% of women in India between the ages of 18 and 29 years
were married before the age of 18 years. It is also estimated, interestingly
but disturbingly, that there are about 23 million child brides in the country.
As far as any remedy available to a child bride is concerned, the counter
affidavit draws attention to Section 3 of the Prohibition of Child Marriage
Act, 2006 (the PCMA). Under Section 3(1) of the PCMA a child
marriage is voidable at the option of any contracting party who was a
child at the time of the marriage. The marriage can be declared a nullity
B
c
in terms of the proviso to Section 3( I) of the PCMA through an
appropriate petition filed by the child within two years of attaining majority
D
and by approaching an appropriate court of law. It is also stated that in
terms of Section 13(2)(iv) of the Hindu Marriage Act, 1955 a child bride
can petition for a divorce on the ground that her marriage (whether
consummated or not) was solemnized before she attained the age of 15
years and she has repudiated the marriage after attaining that age but
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before attaining 18 years of age. In other words a child marriage is
sought to be somehow 'legitimized' by the Union oflndia and the onus
for having it declared voidable or a nullity is placed on the child bride or
the child groom.
Documentary material
11.