Independent Thought v Union of India1

Introduction

Marriage is something most girls are taught to see as their future, something that is identified
as their 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 become their purpose
before entering what is legally considered adulthood. On attaining puberty, girls are often
married off to men twice or even thrice their age. 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.”2 Marriage life often turns out to be the exact opposite of the rosy
picture that it is painted 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.

Facts

The legislations of India, does neither criminalise marital rape, nor does it invalidate these
child marriages. Marital rape is considered a criminal offence only if the bride is below the
age of 15. 3 This principle is known as 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, Section 375 of the
Indian Penal Code,1860 which states that “Sexual intercourse or sexual acts by a man with
his own wife, the wife not being under fifteen years of age, is not rape.” 4 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. 5 A division
bench of the Supreme Court of India consisting of Justice Madan B Lokur and Justice
Deepak Gupta delivered the landmark judgement in 2017 in this case.

The writ petition challenged Exception 2, Section 375 of the Indian Penal Code,1860. 18 is
the age that is considered as the minimum age required for sexual consent. Any act of sexual

1
Independent Thought v Union of India; (2017) 10 SCC 800
2
Neeta Lal, “Early Marriages in India: No Child’s Play”; The Diplomat;(September 8 2020)
https://thediplomat.com/2020/09/early-marriages-in-india-no-childs-play/

3
Indian Penal Code,1860; Section 375; Exception 2
4
Id
5
Constitution of India; Article 32 A
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, 2012.6 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 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 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 questions the bodily integrity of the girl child. The defendants,
however, spoke in favour of the said provision and claimed that ‘criminalising marital rape
would question the integrity of the institution of marriage’. 7 The arguments of the defendants
were on the grounds of Exception 2, Section 375 of Indian Penal Code 1860 being in
consensus with tradition, culture and customs.

Issues

There were three main issues raised in this case. The first one was whether sexual intercourse
between a husband and a wife is rape in case the wife is between 18 and 15 years of age. The
second issue raised was regard to whether Exception 2 to Section 375 of the Indian Penal
Code is violative of the fundamental 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.

Judgement

The judgement in the case of in the Independent Thought v Union of India case 8, can 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 legislations regarding child
marriage in the country are very vague in nature. This needs to be taken into cognisance and
necessary action must be taken for the same. Tradition or customary practices is not a
justification for

6
Protection of Children from Sexual Offences Act, 2012; Section 2 (d)
7
Independent Thought, Supra 1
8
Id
rape. “Rape is rape and consent is consent.”9 There is a lot of ambiguity in legislations in the
area of human rights, especially with regard to the primacy given to the personal law system.

Analysis

The judgement stated that, “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.” 10. Using this the
Court amended Exception 2 of Section 375, Indian Penal Code 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.”11

In this judgement, the Court considered child marriage to be violative of a 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.”12 The Court held that this ambiguity is grossly misused, and as a result
child marriage is practiced, which denies 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.”13 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.”14

9
Sahil Azam; “Refusal to recognise Marital Rape implies we value institution of marriage over lives of
women”; Youth ki Awaaz; (October 8, 2019); https://www.youthkiawaaz.com/2019/10/rape-inside-bedroom-
india-is-still-in-denial/

10
Independent Thought, Supra 1
11
Id
12
Prohibition of Child Marriages Act,2006; Section 3
13
Independent Thought, Supra 1
14
Juvenile Justice (Care and Protection of Children) Act, 2015; Section 5
The Court drew light towards the lacunae in the existing child marriage legislations. The
Court did take into consideration and applauded the decision of the Karnataka Government to
declare all child marriages void.15The Court called for proper implementation of existing
legislations, in both the central and state levels, to put an end to this social evil. The
judgement stated that “Welfare schemes and catchy slogans…must be backed up by focused
implementation programmes [and] other positive and remedial action” 16 which shows the
Court’s stance on the issue of implementation of legislation. The Court called for the
harmonising legal framework. Legislations like the Prohibition of Child Marriage Act,2006 is
based on the personal law system and gives 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 was
another major point that the Court raised. The Court rejected the claim of the defence that the
Exception 2, Section 375 of the Indian Penal Code,1860 was valid as it was based on
tradition. The Court held that ““times and situations change, so must views, traditions, and
conventions,” and affirmed that “constitutional morality” requires preventing the
endangerment of girls”17 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 legislations, such as the Protection of Children from
Sexual Offences Act, 2012 and constitutional provisions. The Protection of Children from
Sexual Offences Act,2012 states that “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.”18The Protection of Children from Sexual Offences Act, 2012 was drafted based on
the provisions of the Constitution of India, which states, Nothing in this article shall prevent
the State from making any special provision for women and children.” 19 The Protection of
Children from Sexual Offences Act, 2012 will therefore have an overriding effect over the
Exception 2 of Section 375 of the Indian Penal Code, due to its constitutional guarantee.
15
Prohibition of Child Marriage (Karnataka Amendment Act), 2016
16
Independent Thought, Supra 1
17
Id
18
Protection of Children from Sexual Offences Act, 2012; Section 5 (iv) (n)
19
Constitution of India; Article 15, Clause 3
The Court also stated that the Exception 2, Section 375 of the Indian Penal Code, 1860 was a
clear violation of Article 14, 15 and 21 of the Indian Constitution. The provisions of Article
14 is violated, as an unmarried girl child once subjected to intercourse can claim remedy, but
the same rule cannot be applied to a married girl child. This is 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 2, 375 of Indian Penal Code 1860 is also violative
of Article 21, Right to life and personal liberty, which is inclusive of right to dignity.20

The Court did not take down Exception 2, Section 375 of the Indian Penal Code,1860, on the
contrary amended it. The amended exception 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.” 21 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 Protection of Child from Sexual Offences Act, 2012.22

Conclusion

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 cases cannot be
justified under the pretext of tradition. However, this judgement overlooks the concept of
marital rape as a whole, 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. Court fails 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.23 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, 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
20
Danial Latifi v Union of India, (2001) 7 SCC 740
21
Independent Thought, Supra 1
22
Supra 6
23
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
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 woman are victims of. The Court however, did clarify
regarding the issues with respect to the ambiguity of legislations where there is a clash
between human rights and the personal law systems. This judgement is a landmark
judgement, as it is a clear example of the increasing importance placed on human rights in the
country.