Independent Thought vs. Union of India : Exploring the intricacies of marital rape laws in India [Case Comment]

Introduction

On October 11, 2017, the Hon’ble Supreme Court of India issued a landmark judgment in criminalizing sexual intercourse with child brides above 15 years and recognizing their right to bodily integrity irrespective of marital status. As Hon’ble Madan Lokur, J., expressed in Shakespeare’s eternal view that ‘a rose by any other name would smell as sweet – so also with the status of a child, despite any prefix’.^[i] The Apex Court, while citing the preambles of pro-child statutes^[ii]  and Article 15(3)^[iii] of the Indian Constitution, recognized the constitutional and human rights^[iv] obligations of the government to protect the rights of one of the world’s most ‘vulnerable groups’^[v].

Factual Background: dichotomy of ‘lawful’ and ‘unlawful’ sexual activity

The writ petition was filed by ‘Independent Thought’ under Article 32 of the Indian Constitution to resolve the anomalous position of the rights of  the girl child who are married between the age of 15-18 years. Post the unfortunate Nirbhaya^[vi] case, the Criminal Law Amendment Act in 2013 increased the age of consent in clause ‘sixthly’^[vii] of Section 375, IPC from sixteen to eighteen years. The said amendment was also collateral to the definition of ‘child’ under various national and international legislations. However, Exception 2^[viii] of Section 375, IPC was not amended despite the recommendations of the Justice Verma Committee.

Exception 2 of Section 375, IPC legitimized the sexual activity between a child bride above 15 years of age and her husband. However, any sexual activity with an unmarried girl child above 15 years of age is a “statutory rape” in almost every statue of the country. The artificial distinction created on the basis of marital status of the girl child was challenged before the Hon’ble Supreme Court in the present case.

Issue of Law

The limited issue dealt by the Hon’ble Supreme Court in the present case was:

“whether a girl below 18 years who is otherwise unable to give consent can be presumed to have consented to have sex with her husband for all times to come and whether such presumption in the case of a girl child is unconscionable and violative of Articles 14, 16 and 21 of the Constitution of India?”^[ix]

Grounds

The petitioner had sought criminalization of the sexual intercourse between a child bride above 15 years between 15-18 years of age and her husband on the following grounds:

• Child marriage legitimizes “Statutory Rape”: The Criminal Amendment Act, 2013 brought after the Nirbhaya case increased the age of sexual consent from 16 years to 18 years in clause “sixthly” of Section 375 of the Indian Penal Code, 1860 (“IPC”). This means 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. However, no parallel amendment was made in Exception 2 of Section 375, IPC.

• The girl is a ‘child’ irrespective of her marital status: Anyone below 18 years is a “child” as specified in various international and national legislations.^[x] The consent of the child is deemed to be immaterial.

• Child marriage violates the human rights of the girl child^[xi]: Additionally, the States and the Central Government failed to notify Rules making registration of marriages compulsory.^[xii]

• Child marriage violates the fundamental rights of the girl child granted in the Indian Constitution:

1. Article 14: Exception 2 of Section 375, IPC creates an artificial distinction since sexual intercourse with a girl child below 18 years amounts to penetrative sexual assault^[xiii] and aggravated penetrative sexual assault^[xiv] under the POCSO Act. The objective behind granting blanket immunity to the husband in IPC has ‘no rational nexus’ with the magic number of ‘fifteen years’^[xv]. Moreover, the husband of the child bride above 15 years can be tried for “lesser offences”^[xvi] but not rape which is further outright arbitrary and discriminatory.
2. Article 16: Child marriage denies equal opportunity to the girl child who is forced to leave school, thereby, closing doors of future empowerment.^[xvii]

• Article 21: Allowing non-consensual sex by husband with a (“wife”) girl between 15 – 18 years violates the bodily integrity of the girl child and the right to live life with human dignity.^[xviii]

 Incongruous with special laws for women

1. Protection of Child Marriage Restraint Act, 2006 (PCMA): Exception 2 of s. 375, IPC encourages violation of PCMA that aims at prohibiting child marriages. However, PCMA itself collaterally legitimizes child marriage and places onus for declaring it ‘voidable’^[xix] at the option of either of the contracting parties. Further, decree of nullity can only be attained within two years after the contracting parties have attained maturity.
2. Protection of Women from Domestic Violence Act, 2005 (DV Act): Allowing men to rape their minor wives is a mockery of the protection granted to them under the DV Act from ‘sexual abuse’^[xx]. In case of violation, the wife under DV Act can seek compensation and protection order against the husband.

• Protection of Children from Sexual Offences Act, 2012 (POCSO): The dichotomy lies in regarding sexual intercourse with a child bride above 15 years above 15 years as lawful^[xxi] in IPC which amounts to aggravated penetrative sexual assault in terms of Section 5(n) of the POCSO Act. Section 42-A^[xxii] of POCSO provides the Act will override the provisions of any other law (including the IPC) to the extent of any inconsistency. Additionally, sections 5 and 41 of the IPC provide that IPC shall not affect the provisions of any “special law”.

1. Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act):

A child bride above 15 years of age is no different from the ‘child’ considered to be at imminent risk in  section 2(14) of the JJ Act.^[xxiii] Section 27 of the JJ Act further provides that such a child should be cared for, protected and appropriately rehabilitated or restored to society.

Counter-Affidavit by the Union of India

The defence taken by the Union of India was limited to three justifications^[xxiv] which was outrightly rejected by the Hon’ble Supreme Court for completely overlooking the pro-child statutes. Firstly, the Union of India argued that a child bride above 15 years is presumed to consent to sexual intercourse with her husband either expressly or by necessary implication. Secondly, the ‘defence of social reality’ was taken stating traditions must be respected and not destroyed.^[xxv] Thirdly, the Defence echoed the apprehensions of certain Rajya Sabha members that criminalizing marital rape can destroy the ‘institution of marriage’.^[xxvi]

Judgment

The Hon’ble Supreme Court, while disregarding the contentions of the defence, observed that harmful traditions^[xxvii] or cultural practices should not form the basis of laying down irrational standards in mistreating the girl child by her husband. The Apex Court further emphasized on the need to harmonize the provisions of various statutes; and different provisions of the IPC inter-se.^[xxviii] The Court further observed that “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. …It must also be remembered that the provisions of the JJ Act 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.”

A Bench of Hon’ble Justices Madan B Lokur and Deepak Gupta held that the exception in the IPC is arbitrary and discriminatory because the artificial distinction between married and unmarried girl children has no clear objective.  In the light of constitutional vision and social justice, the Apex Court granted relief to the petitioner by applying purposive and harmonious^[xxix], constructive attitude^[xxx] for “reading Exception 2 to Section 375 of the IPC 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, Exception 2 to Section 375 of the IPC is now 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.”

Critical Analysis of the Judgement

The empathetic, yet emphatic approach undertaken by the Hon’ble Supreme Court in narrowing the ‘marital rape exemption’ has led to speculations over increasing the legal age of marriage of the girl child.^[xxxi] The decision has been criticized by experts of law as well as various social-activists for a number of reasons making the present issue an open field for analysis and exploration through socio-legal research.

Jurists have raised concerns over widening the gap between age of sexual consent and legal age of marriage apprehending that it might end up punishing “innocent love”^[xxxii]. Consecutive amendments in personal laws are also called for in order to achieve efficient implementation of PCMA.

• Diffused boundaries with marital rape

The Apex Court specifically clarified that the present case shall not have any bearing on the issue of marital rape. Additionally, the Hon’ble Court chose not to address the issue raised by the petitioner concerning violation of right to privacy^[xxxiii] of the girl child under Exception 2 of Section 375, IPC in order to refrain making any comments on the broader issue of “marital rape”.^[xxxiv]

Contrastingly, the observations made by the Hon’ble Supreme Court on the institution of marriage in the present case are far-intertwined to be seen in isolation and are very well applicable to marital rape.^[xxxv] 
As Hon’ble Madan Lokur, J., observed that “Marriage is not institutional but personal – nothing can destroy the ‘institution’ of marriage except a statute that makes marriage illegal and punishable.” The Apex Court further reiterated the judgement of European Court of Human Rights endorsing a conclusion that:

“The exemption for marital rape stems from a long out-dated notion of marriage which regarded wives as no more than the property of their husbands….‘marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband……a rapist remains a rapist regardless of his relationship with the victim.”

• Inefficacy of the Karnataka model

The Karnataka State Legislature inserted sub-Section (1A) in Section 3 of the PCMA in 2017 declaring every child marriage as ‘void ab initio’ with prospective effect. The Hon’ble Supreme Court recommended all the State Legislatures to adopt the route taken by Karnataka to ensure that sexual intercourse between a girl child and her husband is a punishable offence under the POCSO Act and the IPC. However, the Karnataka model has not received sufficient implementation at the ground level. This further raises eyebrows as to the applicability of the respective model across the country in the absence of any guidelines on enforcing the law at the ground level.

• Irregularities in personal laws:

Personal laws allowing child marriage pose hindrance in implementing PCMA. Additionally, consequential amendments were not made in Hindu Marriage Act, 1955 and the Dissolution of Muslim Marriages and Divorce Act, 1939. Section 2(vii) of The Dissolution of Muslim Marriages Act, 1939 requires the child bride above 15 years to repudiate her marriage before she attains majority without consummating the marriage. Depriving the girl child from getting the marriage annulled in case the husband engages in forcible sexual intercourse with her is an insult and outright mockery of the PCMA.

Parallely, a child bride above 15 years under PCMA can apply for annulment of marriage up to the age of 20 years whereas under Section 13(2)(iv) of the Hindu Marriage Act, a child bride above 15 years must repudiate the marriage before she attains majority. Further, it cannot be expected that the parents who forced the girl child into marriage will help her to dissolve the same marriage. The Hon’ble Supreme Court limited its opinion stating that the PCMA being a secular Act shall apply to all.

• Punishing “innocent love”

The Hon’ble Supreme Court overlooked the impact of statutory rape laws on sufficiently mature teenagers between the age of 15-18 years engaging in consensual sexual intercourse.^[xxxvi] In India, the statutory rape laws are rampantly misused by the parents of eloping young teens against the boy child for punishing their ‘independent sexual choices’.^[xxxvii]

Recently, the Hon’ble High Court of Madras suggested to exclude consensual sexual acts between teenageers aged above 16 years from the POCSO Act, 2012. Enacting age-span provisions^[xxxviii] such as the “Romeo Juliet provisions”^[xxxix] to eliminate strict liability for certain degrees of sexual contact between sufficiently mature minors will also  involve lowering the age of consent for sex within specified age differentials. However, the Supreme Court, while respecting the ‘separation of powers’ doctrine, stated that it is upto the legislature to consider the possibilities of enacting such laws in future.

• Poor Enforcement at the ground level

Merely strengthening the laws without undertaking enough measures for their implementation will not be enough to curb the ‘social evil’^[xl] of child marriage. The bureaucratic hurdles involving redirecting complaints by child marriage prohibition officers (CMPO’s) to the officers under DV Act, 2005 systemically fails the victims of child marriage.^[xli]

Conclusion

The landmark judgement of the Apex Court is inarguably a welcome step towards forwarding the rights of the girl child. India being one of the most dangerous^[xlii] countries in the world for women; also tops the list for having the highest absolute number of child brides in the world.^[xliii] The harmonious and purposive interpretation by the Hon’ble Supreme Court; to cohesively read Exception 2 of section 375, IPC with PCMA, POCSO and JJ Act is highly justified.

The Hon’ble Bench, however, limiting itself to criminalizing any sexual activity with a child bride in IPC, did not delve into the irregularities in the personal laws that still continue to govern their fate in a religion-oriented country. The secular provisions of PCMA, though superseding the personal laws, are still in dire need of efficient implementation.

Lastly, the reluctance of the Hon’ble Supreme Court to extend the bearing of the present judgement on the broader issue of ‘marital rape’ unfortunately discriminates at large against the “capacity to consent” for women in marriage. Although, the issue of ‘marital rape’ can be regarded as beyond the scope of the present judgement, however, certain observations made by the Hon’ble Supreme Court are bound to serve as a ‘faint light’ in darkness. Inadvertently, the landmark judgement will continue to inspire feminists for bringing forth the broader issue of ‘marital rape’ before the Hon’ble Supreme Court in the future.

^[i] Id, Hon’ble Madan Lokur, J., page 48, para 77.

^[ii] The Prohibition of Child Marriage Act, 2006; the Protection of Children from Sexual Offences Act, 2012; the Juvenile Justice (Care & Protection of Children) Act, 2000.

^[iii] Sri Mahadeb Jiew v. Dr. B.B. Sen AIR 1951 Cal 563, Government of A.P. v. P.B. Vijayakumar (1995) 4 SCC 520, Cyril Britto v. Union of India AIR 2003 Ker 259, Shrikrishna Eknath Godbole v. Union of India PIL No. 166/2016 decided on 21st October, 2016.

^[iv] International Covenant on Economic, Social and Cultural Rights, adopted on 3 January, 1976, Article 12(1).

^[v] UNICEF Report “On The State Of The World’s Children 2016”: “Married girls are among the world’s most vulnerable people”. See also Chandrima Chatterjee & Gunjan Sheoran. “Vulnerable Groups In India”, Centre for Enquiry into Health and Allied Themes, Survey No. 2804 & 2805, pages 4-10.

^[vi] Mukesh and Anr. v State for NCT of Delhi and Ors., AIR 2017 SC 2161.

^[vii] The Indian Penal Code, 1860, s. 375 states that “A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:— Sixthly -With or without her consent, when she is under sixteen years of age”.

^[viii] The Indian Penal Code, 1860, s. 375, exception 2: “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape” (as per Criminal Amendment Act, 2013).

^[ix] Supra note 1, Hon’ble Deepak Gupta, J., para 7.

^[x] International legislations: UN Convention on the Rights of the Child, Universal Declaration of Human Rights (UDHR); National legislations:  the Protection of Children from Sexual Offences Act, 2012, Juvenile Justice (Care and Protection of Children) Act, Child Marriage Restraint Act, 1929, Protection of Women from Domestic Violence Act, 2005, The Majority Act, 1875, The Guardians and Wards Act, 1890, The Indian Contract Act, 1872.

^[xi] Convention on the Rights of the Child (the CRC); Convention on the Elimination of All Forms of Discrimination Against Women (the CEDAW), art. 16.2; United Declaration of Human Rights, art. 16(2); Protection of Human Rights Act, 1993, s. 2(d).

^[xii] Seema v. Ashwani Kumar, (2006) 2 SCC 578.

^[xiii] The Protection of Children from Sexual Offences Act, 2012, s. 3.

^[xiv] The Protection of Children from Sexual Offences Act, 2012, s. 5.

^[xv] The Indian Penal Code, 1860, s. 375(6).

^[xvi] The Indian Penal Code, 1860, ss. 354, 354A, 354B, 354C & 354D.

^[xvii] Ministry of Women and Child DevelopmentGovernment of India Report, ‘Study on Child Abuse: India 2007’, https://cjp.org.in/wp-content/uploads/2017/11/MWCD-Child-Abuse-Report.pdf.

^[xviii] Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1; Devika Biswas v. Union of India  (2016) 10 SCC 726.

^[xix] The Prohibition of Child Marriage Act, 2006, s. 3.

^[xx] The Protection of Women from Domestic Violence Act, 2005, s. 3.

^[xxi]The Indian Penal Code, 1860, s. 375, Exception 2.

^[xxii] S. 42-A was inserted in the POCSO Act, 2012 by an amendment made on 3rd February, 2013.

^[xxiii] Juvenile Justice (Care and Protection of Children) Act, 2015, s. 2(14) states that “child in need of care and protection” means a child— xii) who is at imminent risk of marriage before attaining the age of marriageand whose parents, family members, guardian and any other persons are likelyto be responsible for solemnisation of such marriage”.

^[xxiv] Rattan Arya v. State of Tamil Nadu, (1986) 3 SCC 385; Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1; Satyawati Sharma v. Union of India, (2008) 5 SCC 287.

^[xxv] National Family Health Survey – 3 (of 2005) stated that 46% of women in India between the ages of 18 and 29 years were married before the age of 18 years. There are about 23 million child brides above 15 years above 15 years in the country.

^[xxvi] The 167th Report of the Parliamentary Standing Committee of the Rajya Sabha (presented in March 2013), para 5.9.1.

^[xxvii] Ouattara M & Sen P, ‘Forced marriage, forced sex: the perils of childhood for girls’, Gender and Development, 1998, 6:27–33.

^[xxviii] Supra note 2, para 89.

^[xxix] Abhiram Singh v. C.D. Commachen, (2017) 2 SCC 629.

^[xxx] Jugal Kishore v. State of Maharashtra, 1989 Supp (1) SCC 589.

^[xxxi] Jagriti Chandra, ‘Should the age of marriage for women be raised to 21?’, The Hindu (4 Sept., 2020, 11:12 A.M.),https://www.thehindu.com/opinion/op-ed/should-the-age-of-marriage-for-women-be-raised-to-21/article32517084.ece.

^[xxxii] Susan Kuo, ‘A Little Privacy, Please: Should We Punish Parents for Teenage Sex?’, 89 KY. L.J. 135, 163 (2000-2001).

^[xxxiii] Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India and Ors. (2017) 10 SCALE 1.

^[xxxiv] C.R. v UK Publ. ECHR, Ser.A, No. 335-C; Eisenstadt v. Baird 405 US 438.

^[xxxv] Supra note 2, para. 90.

^[xxxvi] Arushi Garg, ‘Child bride above 15 years above 15 years and the Capacity to Consent: A Comment on Independent Thought v Union of India’, University of Oxford: Centre for Criminology Blog (16 Oct, 2017), https://www.law.ox.ac.uk/centres-institutes/centre-criminology/blog/2017/10/child-brides-and-capacity-consent-comment.

^[xxxvii] Shruthi Ramakrishnan, ‘Madras HC’s suggestion on excluding consensual sex between people older than 16 from POCSO Act reflects ground reality’, Firstpost, (May 16, 2019, 7: 59 PM),   https://www.firstpost.com/india/madras-hcs-suggestion-on-excluding-consensual-sex-between-people-older-than-16-from-pocso-act-reflects-ground-reality-6645831.html.

^[xxxviii] Danielle Flynn, ‘All the Kids Are Doing It: The Unconstitutionality of Enforcing Statutory Rape Laws Against Children & Teenagers’, 47 NEW ENG. L. REV. 681, 687-691 (2012).

^[xxxix] Many states in the United States of America have brought in “Romeo Juliet Laws” wherein a consensual intimate relationship between two young teens with a maximum age gap of 3-4 years does not result in proclamation of the young boy as the “child sex offender”. See also: Victoria Simpson Beck & Stephanie Boys,  ‘Romeo & Juliet: Star-Crossed Lovers or Sex Offenders?’, 24(6) CJPR, 655-675 (2013).

^[xl] Lajja Devi & Ors. v. State & Ors. W.P.(Crl.) No.338 of 2008.

^[xli] Malavika Rajkumar, ‘To Root Out Child Marriage, Existing Laws Need Tightening’, the Wire, (11 Sept.,2019), https://thewire.in/rights/child-marriage-laws-india.

^[xlii] Belinda Goldsmith & Meka Beresford, “India Most Dangerous Country for Women with Sexual Violence Rife—Global Poll,” Reuters (25 Jun. 2018), https://perma.cc/3RDP-7PUE.

^[xliii] Rinchen Norbu Wangchuk, ‘India Has the Highest Number of Child Brides in the World: How Do We Deal With It’, the Better India, (19 Apr., 2018), https://www.thebetterindia.com/138496/india-child-brides-marriage-law-posco/.