Day 1 of Arguments (Gaurav Agrawal)

Exception to Rape within Child Marriages

A two-judge Bench comprising Madan B. Lokur and Deepak Gupta JJ commenced hearing arguments. This case challenges the constitutional validity of Exception 2 to Section 375 of the Indian Penal Code to the extent that it creates an arbitrary classification between minor girls on the basis of marital status by setting a considerably lower age of consent.

On August 31st 2017, Advocate Gaurav Agrawal appearing for the petitioner, Independent Thought presented his arguments. Mr. Agrawal argued that the enactment of the Prohibition of Child Marriage Act, 2006 was a result of an increased need for legal measures to curb the socially abhorrent practice of child marriage which was serving as a tool for violation of the rights of children by depriving them of any opportunity for education and creating an environment that was not conducive for development. Though the law was enacted in 2006, in present-day context too, child marriages continue to be rampant, particularly in rural and tribal areas and the adverse consequences of such marriages have been recorded in various reports and data surveys which indicate the impact being more severe in the case of girls. Therefore, exempting sexual violence by husbands where the wives are minors defeats the purpose of the enactment of the PCMA.

Mr. Agrawal also submitted that Section 375 itself suffered from an internal inconsistency for where on one hand it recognised 18 as the age of consent for women for the purpose of sexual intercourse, the age was lowered considerably in case of married women. Further, there can be seen a legislative consensus on the age of consent in the PCMA, The Protection of women from Domestic Violence Act, 2005, The Juvenile Justice (Care & Protection) Act, 2012, and The Protection of Children against Sexual Offences Act, 2012, all of which define a child to mean a person below the age of 18, recognising the incapacity to consent before the said age. Therefore, there can be no implied consent of a minor in the context of sexual relations within marriage. He referred extensively to the Justice Verma committee report that had led to the enactment of the Criminal Law (Amendment) Act, 2013 wherein a specific recommendation was made by the committee to criminalise the offence of marital rape. Consequently the age of consent was increased from 16 to 18 under the IPC. Where the law itself recognised that a child below 18 years is capable of giving consent, simply because Child Marriages were rampant in the country, the same could not be granted legal sanction  as a means of exploitation for the girl child as was being done by Exception 2 to Section 375. Mr. Agrawal also relied on the 172nd Law Commission Report where it was specifically recommended that no distinction be made between married and unmarried girls for the purpose of age of consent.

On the Constitutional validity of Exception 2 to Section 375, he argued that in retaining the 15 years age limit for the offence of rape in cases where the man was married to the girl, the State was legitimising violence against minors girls within marriage. This violates their right to life and dignity under Article 21, and the State fails its duty to protect the rights of the Child under Article 15. Further, the classification between girls below the age of 18 on the basis of marital status was arbitrary and liable to be struck down as violative of Article 14 of the constitution. To this extent, he relied on the decision of the Court in the Triple Talaq case where it has been held that law cannot be arbitrary.

Mr. Agarwal further argued that in addition to the fundamental rights of equality and life and liberty that are protected by the constitution, under the Directive Principles of State Policy in Part IV, Article 39(f) imposes on the state the responsibility to ensure that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

A key concern expressed by the Bench was whether in deleting exception 2, the Court would in effect be creating a new offence and thus exercising excessive judicial power. The case was heard substantially over the course of three days and the Bench has reserved the judgment in the case.