Judgment of the Supreme Court in Plain EnglishException to Rape within Child Marriages
On October 11th 2017, a 2-Judge Bench of the Supreme Court delivered its verdict. The Bench of Justice Madan B. Lokur and Deepak Gupta and unanimously read down Exception 2 to Section 375 of the Indian Penal Code, the provision that defines the offence of rape, which states that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape”.
The Court held that the age of consent must be read to 18 and not 15 for the purpose of the Exception. In effect, this would mean that Exception 2 would read Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape, thus making forced sexual intercourse by a man with his minor wife an offence under the rape laws of the IPC.
It was argued by the Petitioner and the Intervenor that Exception 2 to section 375 of the IPC is violative of Articles 14, 15 and 21 of the Constitution creating an arbitrary classification between married and unmarried minor girls for the purpose of sexual violence. This bears no rational nexus to the object of the Section. Further it is contrary to the obligations of the State to protect the right of the child, both under Article 21 as well as under International Conventions to which India is a party.
Justice Madan B. Lokur delivered his judgment noting the paramount importance of the issue at hand and the ill effects of child marriages. In a separate and concurring judgment, Justice Deepak Gupta has ruled that the exception violates Article 14, 15 and 21 and is inconsistent with POCSO. Noting that child marriage is an abhorrent practice that severely impacts the health and well being of children, the consequences being greater for girl children who are more vulnerable to physical and sexual violence, the court has observed that a girl below the age of 18 does not cease to be a child in the eyes of law simply because she has been married at an early age. Furthermore, rape under Section 375 of the IPC is defined in a similar manner as that of aggravated sexual assault under the POCSO Act, with the same punishment being prescribed for the two offences under the respective statutes. Men do not enjoy immunity under the latter which is a special law enacted towards fulfilling the obligation on part of the State to make special provisions for women and children in order to secure the best interests of the child. Therefore, the failure of the Legislature to address the conflict between the two provisions has resulted in grant of legal sanction to an act otherwise considered as a heinous crime and created an arbitrary distinction between married and unmarried minor girls, one that has no reasonable nexus with any object sought to be achieved.
Voicing their lack of appreciation for the governments justification for retaining 15 as the age of consent under Exception 2 to Section 375 the bench held that under no circumstances can it be assumed that a girl child otherwise incapable of consenting to sexual acts can be said to have implied the same simply on account of being married. Providing a harmonious and purposive interpretation to all statutes relating to the rights of child, the bench has adopted an approach that best secures the interest of the girl child and further protects her fundamental right to liberty, equality, and dignity, the bench has held that Exception 2 to Section 375 of the IPC must be read down. It has further been held that the Prohibition of Child Marriage Act, 2006 is a secular law and must override all personal laws, all attempts being made to secure the objective the enactment aims to achieve. However, there are limitations on the extent to which civil society can combat the evil and it is by way of legislation alone that concrete steps can be taken in this direction. In this regard, the court has cited the amendments made by the State of Karnataka to the PCMA as a model for other states, wherein Section 3 of the Act has been amended to declare all marriages contracted where either party is a child, i.e. a boy below the age of 21 or a girl below the age of 18, to be void in law, thereby meaning that no legal relationship of husband wife subsists and immunity for sexual acts would not be available to a man.