The Petitioner, a registered society, working in the area of child rights, filed a petition under Article 32 of the Constitution, in public interest with a view to draw attention to the violation of the rights of married girls, between the ages of 15 and 18 years.
The Petitioner contends that almost every statute in India recognizes a girl below 18 years of age as a child and thus the law penalizes sexual intercourse with a girl below 18 years of age. Consequently, Section 375 of the Indian Penal Code, 1860 (IPC) prescribes the age of consent for sexual intercourse as 18 years. Therefore, having sexual intercourse with a girl child below 18 years of age would be statutory rape, even if the sexual activity was with her consent- as willingness or consent of a woman below the age of 18 years for having sexual intercourse is irrelevant as she is considered incapable of giving consent. However, by virtue of Exception 2 to Section 375 of the IPC, if agirl child between 15 and 18 years of age is married, her husband can have non-consensualsexual intercourse with her, without being penalized under the IPC, for the sole reason that she is married to him.Hence, the present petition.
1. Whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape.
2. Whether Exception 2 to Section 375 of the IPC, in so far as it relates to girls aged 15 to 18 years, was unconstitutional under Articles 14, 15 and 21 of the Constitution of India and liable to be struck down.
According to Exception 2 to Section 375 of the IPC, sexual intercourse between a man and his wife (being a girl between 15 and 18 years of age) is not rape. However, here the Court regards sexual intercourse with agirl below 18 years of age as rape regardless of whether she is married or not as the Exception creates an unnecessary and artificialdistinction between a married girl child and an unmarried girl child and has norational nexus with any unclear objective sought to be achieved.
Further, the Court opines that there is no real distinction between the offence of penetrative sexual assault or aggravated penetrative sexual assault, under the Protection of Children from SexualOffences Act, 2012 (POCSO) and the rape of a married girl child under the IPC. Thus, the opinion of the Court was that marital rape of a girl child was effectively nothing butaggravated penetrative sexual assault and there was no rationale for the arbitrary anddiscriminatory distinction.
Article 21 of the Constitution gives the fundamental right to a girl child to live a life of dignity. Child marriage in a sense takes away from this and subjects the girl child to sexual abuse. The right to maintain her bodily integrity is compromised under Exception 2 of Section 375 of the IPC- effectively giving the husband full controlover her body by giving him the power to subject her to sexual intercourse without her consent orwithout her willingness since such an activity would not be rape.
Exception 2 toSection 375 Indian Penal Code is held to be discriminatory and violative of Article 14 of the Constitution of India, in so far as it deals with the girl child. The said lawdiscriminates between a girl child aged less than 18 years,who may be educated and has sexual intercourse with her consent and a girl childwho may be married even before the age of 15 years, but her marriage has beenconsummated after 15 years even against her consent.This artificial distinction is contrary to the philosophy and ethos ofArticles 15(3) and 21 of the Constitution, is inconsistent with other statutesand also goes against and India’s commitments in international conventions.
In its judgement, the Supreme Court held that the Exception 2 to Section 375 of the IPC (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 violative of Article 14, 15 and 21 of the Constitution of India as it was arbitrary and not fair, just and reasonable towards the rights of the girl child;
(ii) it was inconsistent with the provisions of POCSO, which must prevail.
The Court felt the need to harmonize theprovisions of various statutes and also harmonize different provisions of the IndianPenal Code inter-se. Thus, the Supreme Court held that Exception 2 to Section 375 of the IPC is to 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."