A PIL was filed by an NGO; Independent Thought vs. Union of India – challenging the exception to Section 375 IPC as unconstitutional as it is not only arbitrary but also discriminatory and contrary to beneficial interest of Article 15 (3) of the Constitution of India and thus, according to the Petitioner the girl child was put at a great disadvantage. The petition sought direction of the Court to fix the age of sexual consent for wives at the age of 18 years. The Union of India filed a Counter Affidavits dated September, 2017, contending that since Child marriage is a social reality, the exception 2 to Section 375, IPC was consciously retained by Parliament to protect the sanctity of marriage between 15- 18 years. However, the Court while hearing the Petitioner had expressed its serious concerns for Child brides.
Finally, the Judgment was delivered in the matter raised in the PIL on 11.10.2017 by a bench comprising of Justice Madan Lokur and Justice Deepak Gupta. The judgment in many ways is path breaking, that recognizes and accepts the human rights of the girl child. It also points out how law remains vulnerable to the crime of girl trafficking in the garb of child marriage as the girl child happens to be between 15-18 years in age. However, the most important aspect of the judgment is while taking note of the existing anomalies amongst various laws describing the age of child differently, it desired uniformity in the age of consent of sexual intercourse at 18 years for all girls married or not married. The Court, thus, directed the Legislature for removing the anomaly – thereby removing the disparities from various laws such as Protection of Children from Sexual Offences Act, 2012, Juvenile Justice (Care and Protection) Act, 2015, Protection of Women from Domestic Violence Act, 2005, Indian Penal Code, 1860 exception 2 to Section 375 and the Prohibition of Child Marriage Act, 2006.
Below is the chart giving variation and revision from time to time in the age of consent of a girl child in a marriage as made under the IPC.
YEAR Age in Exception
2 to Section 375, IPC
|Years||Age in Exception 2 to Section 375, IPC
The purpose of putting the above chart here is aimed at bringing out the fact that the gradual enhancement of age from time to time clearly demonstrates the growing recognition and growing social consciousness that the tenderness of the child will be utterly violated by taking away her right to her bodily integrity and reproductive choice. She would remain incapable of giving consent even if apparently she agrees for indulging into sexual conduct. The progressive shift in the age in the said law as indicated in the chart above, tells as to how, if not explicitly, implicitly is child treated as a commodity.
In a well-researched 84th Report of the Law Commission on Rape Laws in 1980, expressly recommended that the exception 2 created in section 375, IPC is irrational, illusory and negates the childhood-ness of a child simply because she happens to be married. It recommended that disparity be removed and instead of 15 years, the consent age of a wife be made at 18 years like that for all girls (presently as under sixthly clause of Section 375, IPC).
The author of the present note in her latest work on Journey of Women Law Reforms and the Law Commission of India; Some Insights; 2017 has dealt with the issue more elaborately and draws a great satisfaction like many others in this judgment in the hands of the Supreme Court and Justice Lokur in his judgment elaborately tells us how the present law enacted in exception no. 2 of Section 375, IPC, results into the commodification of a girl child. More importantly, he draws that how it further opens the flood gates for trafficking in the girl children in the name of marriage. A similar position was elaborated by the present author submitting her dissertation/PHD thesis on Law Relating To Trafficking In Human Beings With Special Reference To Women, to the University of Rajasthan in 2012.
It is significant that Justice Lokur read down the exception 2 of section 375 of IPC holding that “a child remains a child whether she is described as a street child or surrendered child… similarly a child remains a child whether she is a married child or an unmarried child or a divorced child or a separated or a widowed child…”.
While Justice Deepak Gupta invites attention to the fact that despite the ‘Prohibition of Child Marriage Act, 2006’, number of child marriages in India remains a huge pile and continues to increase. It may also be noted that there a few health experts who believe that if sex by the husband with a wife below 18 years is criminalized, it would increase the instances where wife below 18 years might be subjected to sexual abuse and yet her case and negative health sufferings would intentionally remain hidden because of the husband’s and his family’s fear of being criminalized. Such a situation would heavily increase the possibility of wives health neglect in the hands of the family and may have serious negative consequences to her physical, mental, psychological development. Probably being aware of this and taking note of increasing number of child marriages, despite their being a law prohibiting Child marriage that the Court in the judgment under discussion force-fully built a case for the legislature to amend the law and make the child marriage void ab intio rather than voidable at the option of the contracting parties, leaving burden on the child. It may not out of place to mention that the present author in her latest work of 2007 and as mentioned earlier, has pointed out how the Law Commission of India in its Report no. 205 on proposals to amend the Prohibition of Child Marriages Act, 2006 and other allied laws dealt with the issue and strongly recommended for amending the law by making child marriage void below 16 years of age.
To conclude, we would only say that the Hon’ble Supreme Court by ruling that marriage cannot be a license to have sex with minor girls, has corrected an anomaly in the country’s criminal law. To repeat according to present position in the IPC, the Criminal Law (Amendment) Act, 2013, it is an offence to have sex with a girl below 18 years of age regardless of consent as per Section 375 vide the sixthly clause. However, it made an exception if the girl was the man’s wife, provided she was not below the age of 15 years. In other words, what was statutory rape is treated permissible within the marriage. By reading down exception 2 to section 375, IPC to limit it to girl aged 18 and older, the Court has sought to harmonize the various laws in which any person under the age of 18 is a minor. The judgment is not only correct but forms part of reformist approach.