In the case named Independent thought VS Union Of India (2017). The main issue in front of the Supreme Court was:- “Whether xxxual intercourse between a man and his wife being a girl between 15 to 18 years is rape?” Or Whether Intercourse with a minor wife is rape?
• The issue is limited but is of pertinent importance as India still refuses to recognize Marital Řape.
• The petition or PIL is filed by an NGO named as Independent Thought and it challenged the second exception to Sec 375 of the Indian Penal Code, 1860.
What is Marriage?
• Marriage as an institution is considered to be very pious and sacred to people in India. Two consenting adults decide to spend their lives with each other and get married through customs followed in their traditions/ religion.
What is Child Marriage?:-
• Child marriage is defined as a formal marriage or informal union before age of 18 years. It is a reality for both boys and girls, although girls are disproportionately the most affected.
Laws pertaining to Child Marriage
• In India, Child Marriage is prohibited by law under Child Marriage Act, 2006, • But it is still followed as a custom in many states of India such as Rajasthan, Haryana, Bihar, etc. Many girls are married at a young age and face xxxual exploitation at the hands of their husband who is much older than them.
• Consent under almost most of the Statutes in India is 18 years, The heinous offence of rape under Section 375 of the IPC refuses to:
1. recognize the xxxual intercourse
2. between a man and his wife
3. who is aged between 15- 18 years as rape.
The Question Lies?
The moot question is:
- if a girl between this age group
- is treated as a Child under most of the statutes
- then how is she able to communicate her consent for xxxual intercourse. And if she is not able to communicate so without communication how can Section 375 of IPC be attracted there?
- just because she was married at a young age.
Thus the PIL is filed by an NGO named Independent thought to find out the answer to these questions.
Supreme Court’s Statement on the view of Whether the Intercourse with minor wife is the rape or not?
• In the opinion of the Two-Judge bench of the Supreme Court on Whether the intercourse with a minor wife is the rape or not?:- “xxxual intercourse with a girl / Intercourse with minor wife, below 18 years of age is rape regardless of whether she is married or not. Meaning intercourse with a minor wife is rape. 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 Supreme Court strongly opposed the Exception and said it did not have any rational nexus with any progressive objective.
• The SC also observed that this exception is contrary to
1. Art 15(3)
2. Article 21
• of the Indian Constitution.
• The SC also said that the said exception turns(a blind eye to the trafficking of young girl child and it must be prehibīted as it is a social evil. • The SC however refused to comment on the issue of marital rape of a girl who is of 18 years of age as that was not an issue before it.
• “A girl child below the age of 18 cannot be treated as a commodity having no say over her body or someone who has no right to deny xxxual intercourse to her husband.” – the Supreme Court held.
•A girl has a human right despite the fact that she was married at a young age. The Court finally cleared the disparity between the POCSO Act and Section 375 of IPC.
Difference between reading down and striking down
• In this case the Supreme Court read down the second exception to Section 375 of the IPC.
• There is a difference between reading down a provision and striking down a provision.
• Reading down means bringing it within the four walls of the Constitution.
• Striking down means declaring it unconstitutional.
• So, the SC read down this exception to bring it within the Constitution.
Legal Implications of the Judgement
• The judgment is the pioneer in the protection of a girl child from xxxual abuse at the hands of her husband even if she is married.
• He will be arrested on the charges of rape if the girl files a police complaint.
• Will curb trafficking of girl child in the name of marriage.
•Will be helpful in declaring the child marriage void-ab-initio.
• Establishes a nexus between all the laws that are enacted to protect the girl child.
• Life should be worthful and worth living.
