Supreme Court Reads Down Exception 2 to Section 375 IPC, Protecting Married Girls Below 18 from Marital Rape Immunity

Landmark Judgment Harmonizes Laws to Recognize Sexual Intercourse with Married Girls Under 18 as Rape, Aligning IPC with POCSO and Constitutional Guarantees of Equality and Dignity

In a landmark judgment delivered on October 11, 2017, the Supreme Court of India in Independent Thought v. Union of India struck down the unconstitutional and arbitrary exemption provided under Exception 2 to Section 375 of the Indian Penal Code (IPC) which shielded husbands from prosecution for raping their wives aged between 15 and 18 years. The Court held that sexual intercourse by a husband with his wife, if she is below 18 years of age, constitutes rape, regardless of marital status or consent.

The judgment was delivered by a two-judge bench comprising Justice Madan B. Lokur and Justice Deepak Gupta, who concurred in the reasoning and conclusions. The issue before the Court arose from a public interest litigation filed by Independent Thought, a registered society working in the area of child rights, highlighting the violation of the rights of married girls aged between 15 and 18 years.

Background:

Section 375 of the IPC defines rape and includes a provision (Clause Sixthly) that any sexual intercourse with a girl under 18 years, with or without her consent, amounts to rape (statutory rape). However, Exception 2 carved out an exemption for sexual intercourse by a man with his own wife, provided the wife is not under 15 years of age, effectively legalizing marital rape of girls aged 15 to 18. This exception created an artificial distinction between married and unmarried girls that had no rational nexus with any legitimate objective.

The Court found this distinction arbitrary, discriminatory, and violative of Articles 14 (equality before law), 15(3) (special provisions for women and children), and 21 (right to life and personal liberty) of the Constitution. It also conflicted with India’s obligations under international conventions such as the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

Conflicting Laws and Need for Harmonization:

The Protection of Children from Sexual Offences Act, 2012 (POCSO) defines a child as a person below 18 years and penalizes sexual assault on children, including penetrative sexual assault by a husband on his wife if she is a child. This created a conflict with Exception 2 to Section 375 IPC, which exempted such acts from being rape. Section 42A of POCSO provides that in case of inconsistency, POCSO will prevail over IPC.

The Court emphasized the necessity to harmonize these conflicting provisions to protect the best interest of the child and uphold the spirit of child-friendly legislations such as the Juvenile Justice (Care and Protection of Children) Act, 2015 and the Prohibition of Child Marriage Act, 2006 (PCMA).

Findings:

- A girl below 18 years is a child under all relevant laws and cannot legally give consent to sexual intercourse, whether married or not.

- The exemption in Exception 2 is a relic of an archaic societal notion treating wives as property and is incompatible with modern constitutional values and human rights.

- Sexual intercourse with a married girl child between 15 and 18 years without her consent constitutes rape and is punishable under POCSO and IPC.

- The Court refused to address the broader issue of marital rape of adult women (18 years and above) as it was not part of the petition.

- The justification offered by the Union of India, based on socio-economic realities and traditions, was rejected as insufficient to uphold a provision that violates fundamental rights.

- The Court commended the State of Karnataka for amending the PCMA to declare child marriages void ab initio, a model that other states are encouraged to follow.

Judicial Pronouncement:

The Supreme Court read down Exception 2 to Section 375 IPC to read as follows:

“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”

This interpretation brings the IPC in consonance with POCSO and other child protection legislations and upholds the constitutional vision of social justice for the girl child. The judgment is prospective and does not create any new offence but removes an unconstitutional fiction.

Social and Legal Implications:

The judgment recognizes the grave physical, psychological, and social harms caused by child marriage and marital rape of girls below 18 years, including risks of early pregnancy, maternal mortality, loss of education, and perpetuation of poverty and gender inequality.

It calls upon the Government of India and State Governments to implement laws prohibiting child marriage and to take effective measures to protect the girl child from sexual exploitation within marriage.

The Court highlighted the need for legislative and social reforms to eradicate the evil of child marriage and to ensure the dignity and bodily integrity of the girl child.

Conclusion:

The Supreme Court’s ruling marks a significant step towards protecting the rights of married girls and ensuring that the law does not tolerate sexual violence against them. By reading down Exception 2 to Section 375 IPC, the Court has harmonized conflicting statutes, upheld constitutional guarantees, and reaffirmed India’s commitment to child rights and gender justice.

Statutory provisions

Indian Penal Code, 1860 Section 375, Exception 2; Protection of Children from Sexual Offences Act, 2012 Sections 3, 5, 6, 42, 42A; Prohibition of Child Marriage Act, 2006 Section 3; Juvenile Justice (Care and Protection of Children) Act, 2015 Section 2(14); Protection of Women from Domestic Violence Act, 2005 Section 3; Code of Criminal Procedure Section 198(6)

Independent Thought v. Union of India, (SC) : Law Finder Doc Id # 908220