The Petitioner was a registerd society registered and had 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 Country. It has also been involved in legal intervention, research and training on issues concerning children and their rights. The society had filed a petition in public interest with a view to draw attention to the violation of the rights of girls who were married between the ages of 15 and 18 years. Hence, present petition.
Held, while allowing the petition:
Madan B. Lokur, J.:
(i) Prima facie it might appear that since rape is an offence under the Indian Penal Code (subject to Exception 2 to Section 375) while penetrative sexual assault or aggravated penetrative sexual assault is an offence under the POCSO Act and both are distinct and separate statutes, therefore there is no inconsistency between the provisions of the Indian Penal Code and the provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO). However the fact was that there was no real distinction between the definition of rape under the Indian Penal Code and the definition of penetrative sexual assault under the POCSO Act. There was also no real distinction between the rape of a married girl child and aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act. Additionally, the punishment for the respective offences was the same, except that the marital rape of a girl child between 15 and 18 years of age was not rape in view of Exception 2 to Section 375 of the Code. In sum, marital rape of a girl child was effectively nothing but aggravated penetrative sexual assault and there was no reason why it should not be punishable under the provisions of the Indian Penal Code. Therefore, it does appear that only a notional or linguistic distinction was sought to be made between rape and penetrative sexual assault and rape of a married girl child and aggravated penetrative sexual assault. There was no rationale for this distinction and it was nothing but a completely arbitrary and discriminatory distinction. [98]
(ii) Exception 2 to Section 375 of the Code to now be meaningfully read as: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape." It was only through this reading that the intent of social justice to the married girl child and the constitutional vision of the framers of our Constitution could be preserved and protected and perhaps given impetus. [105]
Deepak Gupta, J.:Concurring view
(iii) The State was entitled and empowered to fix the age of consent. The State could make reasonable classification but while making any classification it must show that the classification has been made with the object of achieving a certain end. The classification must have a reasonable nexus with the object sought to be achieved. In this case the justification given by the State was only that it did not want to punish those who consummate their marriage. The stand of the State was that keeping in view the sanctity attached to the institution of marriage, it has decided to make a provision in the nature of Exception 2 to Section 375 of Code. This begs the question as to why in this exception the age has been fixed as 15 years and not 18 years. As pointed out earlier, a girl can legally consent to have sex only after she attains the age of 18 years. She could legally enter into marriage only after attaining the age of 18 years. When a girl gets married below the age of 18 years, the persons who contract such a marriage or abet in contracting such child marriage, commit a criminal offence and were liable for punishment under the Prohibition of Child Marriage Act, 2006. In view of this position there was no rationale for fixing the age at 15 years. This age has no nexus with the object sought to be achieved viz., maintaining the sanctity of marriage because by law such a marriage was not legal. It may be true that this marriage was voidable and not void ab initio (except in the State of Karnataka) but the fact remains that if the girl has got married before the age of 18 years, she has right to get her marriage annulled. Irrespective of the fact that the right of the girl child to get her marriage annulled, it was indisputable that a criminal offence has been committed and other than the girl child, all other persons including her husband, and those persons who were involved in getting her married were guilty of having committed a criminal act. When the State on the one hand, has, by legislation, laid down that abetting child marriage was a criminal offence, it could not, 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 was discriminatory and violative of Article 14 of the Constitution. [183]
(iv) One more ground for holding that Exception 2 to Section 375 of Code was discriminatory was that this was the only provision in various penal laws which gives immunity to the husband. The husband was not immune from prosecution as far as other offences were 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 of Code etc. but he could not be charged with rape. This leads to an anomalous and astounding situation where the husband could be charged with lesser offences, but not with the more serious offence of rape. As far as sexual crimes against women were concerned, these were covered by Sections 354, 354A, 354B, 354C, 354D of the Code. 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. There was no exception Clause giving immunity to the husband for such offences. The Domestic Violence Act would also apply in such cases and the husband does not get immunity. There were many other offences where the husband was either specifically liable or may be one of the accused. The husband was not given the immunity in any other penal provision except in Exception 2 to Section 375 of Code. It did not stand to reason that only for the offence of rape the husband should be granted such an immunity especially where the "victim wife" was aged below 18 years i.e. below the legal age of marriage and was also not legally capable of giving consent to have sexual intercourse. Exception 2 to Section 375 of Code was, therefore, discriminatory and violative of Article 14 of the Constitution of India, on this count also. [184]
(v) Exception 2 to Section 375 of Code in so far as it relates to a girl child below 18 years was liable to be struck down on the following grounds:(i) it was arbitrary, capricious, whimsical and violative of 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 was discriminatory and violative of Article 14 of the Constitution of India and; (iii) it was inconsistent with the provisions of POCSO, which must prevail. [195]
IN THE SUPREME COURT OF INDIA
Writ Petition (Civil) No. 382 of 2013 (Under Article 32 of the Constitution of India)
Decided On: 11.10.2017
Independent Thought Vs. Union of India (UOI)
Hon'ble Judges/Coram:
Madan B. Lokur and Deepak Gupta, JJ.
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