This Case Summary is written by Ruchita Yadav, a student at Dr. Ram Manohar Lohiya National Law University, Lucknow
On October 11 2017, the Supreme Court for the first time addressed the government’s obligation towards the Constitutional and Human rights to address child marriages and related aspects of intersectionality. Among several issues, the critical issue was of marital rape with girl children. The article is a case comment on the case, brief and informative account of findings of the court, government’s negligence and absurd defenses. The article aptly covers each aspect related to the case with blend of critical analysis of the delivered judgment.
BACKGROUND/ FACTS OF CASE
An amendment under the Criminal Law (Amendment) Act, 2013 was in sixthly clause of S. 375 of Indian Penal Code, 1860 increasing the age for consent to sexual intercourse from 16 to 18. That means, whether consensual or non-consensual sexual intercourse with a girl child i.e., less than 18 years of age, is rape. But, Exception 2 to aforesaid section permits husband to have non-consensual sexual intercourse with his wife when she’s between 15 to 18 years of age isn’t amounting to rape.
Independent Thought, a National Human Rights Organization filed a writ petition under Article 32A with view to draw attention towards gross violation of human rights of married girl child between 15 to 18 years of age, therefore, challenging Constitutionality and legality of Exception 2 of S. 375, IPC. Child Rights Trust, a non-governmental organization which works on Child Marriage prevention, joined as an intervenor was also heard extensively. The Home Ministry under the United Progressive Alliance (UPA) government filed counter-affidavit in support of the Exception.
- Whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape?
- Whether Exception 2 to S. 375, IPC is discriminatory between a married and unmarried girl child?
- Is the Court creating a new offence?
- Petitioner/ Independent Thought
S. 375 of IPC prescribes the age of consent for sexual intercourse as 18 years meaning thereby consensual or non-consensual, any person having intercourse with a girl below 18 years would be statutorily guilty of rape. Exception 2 of S. 375 allows husband of girl child to have non-consensual sexual intercourse with her, thus, taking away their right to bodily integrity.
- Respondent/ Union of India
The Union of India contended that 15 years age of girl child has been retained in Exception 2 of S. 375 of IPC considering the social realities of nation, providing protection to husband and wife against criminalizing sexual activity between them because child marriages still take place due to uneven economic and educational development in country and it wouldn’t be appropriate viewing socio-economic conditions of nations and due to traditional practices. Indian tradition evident child marriages and such traditions must be respected and not completely destroyed. Also, criminalizing consummation of a marriage union with a serious offence wouldn’t be appropriate and practical as per of estimation by National Family Health Survey – III which says that there are 23 million child brides in nation.
Through entering into marital relationship, the girl child consents to sexual intercourse with her husband either express or implied. Whatever be the objective petitioner sought to achieve, the marital status of girl child between 15 to 18 years of age has no rational nexus with the objective. Declaring sexual intercourse between girl child and her husband as rape would be a too much intervention in their marital affairs, thus, harming the institution of marriage.
SUPREME COURT’S FINDINGS & JUDGMENT
Division bench of Court refrained itself from giving any opinion on “marital rape” and said that it restricts itself to the issue at hand i.e., whether sexual intercourse by husband with her wife who is a girl child (15-18 years of age) constitutes rape and related issues. The Apex Court found and reacted on following aspects:
Antithetical statutes and Government’s negligence
As per S. 2(d) of the Protection of Children from Sexual Offences Act, 2012, Child is a person below 18 years of age. S. 2(12) of the Juvenile Justice (Care and Protection of Children) Act, 2015 and S. 2(a) of the Protection of Child Marriage Act, 2006 defines Child to be “a person who hasn’t completed 18 years of age”.
The preamble of the POCSO act recognizes the best interests and well being of children to be of paramount importance to ensure healthy, physical, social and mental well-being. Enacted with consonance of Art. 15(3) of the Constitution, it pinpoints sexual harassment/ violence as heinous crimes. As per POCSO’s provisions, sexual intercourse with a child is a heinous crime and thus, unlawful criminal activity. Exception 2 of S. 375, IPC is clearly contradictory to provisions of the act and its preamble. The duality is that, husband having sexual intercourse with his wife who is a girl child is not rape but is ‘aggravated penetrative sexual assault under S.5(n) of the POCSO Act and thus, punishable.
The JJ act relatable to Art. 13 of the Constitution says that when a girl is married before attaining the age of marriage, the family members, parents and guardian or whoever is taking care of child should be held responsible for marriage. Art. 34 of Convention on the rights of Child, which India is signatory to, binds the nation to forge measures ensuring best interests and health of children. But the Central Government seems to have divided opinions for safeguarding interests of a married and unmarried girl child. Through these conflicting and contradictory provisions, it’s clear that Parliament is ambivalent and ambiguous over issue of criminalizing child marriages and solving the problem pertaining to contradictory statutes.
Violation of Constitutional and Human Rights
Child marriages lead to pernicious physiological and psychological health of girl children. The apex Court also took help of several reports establishing economic costs of child marriages and implications and adverse challenges faced by girl children leaving heavy toll on girls’ mental health. Exception 2 of S. 375, IPC besides providing blanket protection, freedom to husbands for rape but not for lesser sexual act as per S. 354A of IPC constitutes an anomalous and astounding situation. This leads to violation of right to bodily integrity recognized in privacy context, productive choices which is part of Article 21, sexual and reproductive health, decision-making power, basic freedoms and exposes them to violence of abuse ranging from controlling and inequitable behavior, negative physical and psychological consequences such as traumatic experience after sexual violence.
Depriving them of freedom, opportunity for personal development have serious consequences on girl children such as early pregnancy, maternal and neonatal mortality destroys entire psychology and pushes them into deep emotional crisis. This is how exception leads to gross violation of Art. 15(3), 14 and 21. The court emphasizes upon the fundamental rights of girls which must be upheld regardless of their marital status and denial of constitutional and would dilute the implementation of law against child marriage.
S. 2(d) of the Protection of Human Rights Act, 1993 defines human rights as “rights relating to liberty, equality and dignity”. Undoubtedly, sexual intercourse with a girl child without her will or consent would amount to violation of human right. This stance is supported in the Convention on the Rights of Child (the CRC) and the Convention on the Elimination of All Forms of Discrimination Against the Women (the CEDAW).
Violation of rights can’t be justified in name of tradition
The bench aptly pointed out that the Parliament must act rationally and put reasonable thoughts before making a custom as law. In Satyawati Sharma, it was noted that the legislation which might be in compliance with needs during that time might relapse with change in times, needs and dynamics of society and thus, such legislation need to be changed. Also, with change in time the legislation might become arbitrary.
The bench further pontified that “constitutional morality” requires preventing endangerment of girls and safeguarding their rights. This can be ensured through proper implementation of existing provisions, clearing out all ambiguities in statutes, forging measures to improve educational status of girl children. An absurd tradition can’t be defended to be followed or declared legal just because it’s a tradition. The government’s defense of protecting a tradition was strongly criticized.
Justice Lokur found the only pragmatic and viable solution as to have harmonious and purposive construction of Exception 2 of S.375 of IPC to be in consonance with the spirit of POCSO Act and other pro-child legislations, treaties and conventions that India is signatory of. On the other hand, Justice Gupta held that Exception is liable to struck down as it’s whimsical, arbitrary and capricious. Both judges agreed that, now onwards Exception 2 of S. 375, IPC is to be 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.”
The Exception 2 is discriminatory in nature as it distinguishes between a married and unmarried girl child without any reasonable nexus which also violates their constitutional rights. Justice Lokur uttered that by partially or fully striking down the exception, there’s no cavil of doubt that the Court can’t create an offence. Justice Gupta said that the court isn’t creating new offence, but removing what was unconstitutional and offensive.
DISPOSITION & CRITICAL ANALYSIS
The judgment called for harmonization of the legal framework and addressed several issues of obscurity and uncertainty through clear discussion. For instance, Gupta J. specified that the PCMA has primacy over religion-based personal laws. Both judges had concurring opinion and uttered that married girls should be considered “children in need of care and protection”. The bench pointed out factors that were detrimental to girl children’s overall development, physical and psychological health and concerning with their basic rights. Also, the bench adopted transparent approach in dealing and strike right to the conflicting status of statutes and non-compliance of the Central government with Conventions.
But, somehow, the Apex Court deliberately left out the opportunity to deliver an inclusive verdict targeting the whole issue of “marital rape”. It didn’t take suo moto cognizance of the matter since long time, because the PCMA act with its enactment in 2006 and criminal law amendment act of 2013 focused upon this point, though obliquely and directly respectively. The Court could have put the record straight over the issue of marital rape and utilize the opportunity in more effective manner.
India is one of those several nations who haven’t criminalized marital rape. Arbitrariness of provision which provide punishment for domestic violence, or being hit, injured, physically or mentally by her husband or in-laws would be punishable but the sexual intercourse without her will or consent won’t be designated as rape. This paradoxical situation postulated in statutes reflect the true intentions of makers to not to be called “left-behind” by not substantiating issues such as domestic violence and child marriage and to protect age old traditions and ill-mentality without no reasonable nexus.
Consent is an essential element in all important things, that too free consent. Subsequently, minor is not considered fit to consent over matters, for instance in Contracts. When it’s evident that an individual’s mental and physical development isn’t complete by the age of 18 years, how come the government found sexual intercourse with a minor individual fine and give blanket protection to such heinous offence on the name of “importance of tradition”. This is probably because of neglected aspect of gender insensitivity, which perpetuates in an individual’s brain irrespective of the positions they hold and impact of absurd traditions over vulnerable section of society. Instances of gender insensitivity, absence of inclusivity are still visible in Administrative and Judiciary’s actions. Long term developmental steps such as holding webinars and short-term courses regularly are important.