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Court cannot assume consent of girl child


In law, it is difficult to accept any one of these justifications. There is no question of a girl child giving express or implied consent for sexual intercourse. The age of consent is statutorily and definitively fixed at 18 years and there is no law that provides for any specific indication (and it has not given any such indication) that the age of consent could be deviated from for any rational reason, we cannot assume that a girl child who is otherwise incapable of giving consent for sexual intercourse has nevertheless given such consent by implication, necessary or otherwise only by virtue of being married. It would be reading too much into the mind of the girl child and assuming a state of affairs for which there is neither any specific indication nor any warrant. It must be remembered that those days are long gone when a married woman or a married girl child could be treated as subordinate to her husband or at his beck and call or as his property. Constitutionally a female has equal rights as a male and no statute should be interpreted or understood to derogate from this position. If there is some theory that propounds such an unconstitutional myth, then that theory deserves to be completely demolished.

Merely because child marriages have been performed in different parts of the country as a part of a tradition or custom does not necessarily mean that the tradition is an acceptable one nor should it be sanctified as such. Times change and what was acceptable the few decades ago may not necessarily be acceptable today.

Hon’ble M.B. Lokur, J., has held that the section 375, Exception 2, I.P.C. is arbitrary. On a complete assessment of the law and the documentary material, it appears that there are really five options before us: (i) to let the incongruity remain as it is – this does not seem a viable option to us, given that the lives of thousands of young girls are at stake; (ii) To strike down as unconstitutional Exception 2 to section 375 of the I.P.C. – in the present case this is also not a viable option since this relief was given up and no such issue was raised; (iii) to reduce the age of consent from 18 years to 15 years – this too is not a viable option and would ultimately be for Parliament to decide; (iv) To bring the POCSO Act in consonance with Exception 2 to section 375 of the I.P.C. – this is also not a viable option since it would require not only a retrograde amendment to the POCSO Act but also to several other pro-child statutes; (v) To read Exception 2 to section 375 of the I.P.C. in a purposive manner to make it in consonance with the POCSO Act the spirit of other pro-child legislations and the human rights of a married girl child. Being purposive and harmonious constuctionists, we are of opinion that this is the only pragmatic option available. Therefore, we are left with absolutely no other option but to harmonize the system of laws relating to children and require Exception 2 to section 375 of the I.P.C. to now 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.” It is only through this reading that the intent of social justice to the married girl child and the constitutional vision of the framers of our Constitution can be preserved and protected and perhaps given impetus.

Hon’ble Deepak Gupta, J, had held that when a girl is compelled to marry before she attains the age of 18 ears, her health is put in serious jeopardy. As is evident from various reports referred to above, girls who were married before the age of 19 years are likely to suffer medical and psychological problems. A 15 or 16 year old girl, when forcibly subjected to sexual intercourse by her “husband”, undergoes a trauma, which her body and mind is not ready to face. The girl child is also twice as more likely to die in child birth than a grown up woman. The least, that one would expect in such a situation, is that the State would not take the defence of tradition and sanctity of marriage in respect of girl child, which would be totally violative of Article 14, 15 and 21 of the Constitution. Therefore, this Court is of the view that Exception 2 to section 375, I.P.C. is arbitrary since it is violative of the principles enshrined in Article 14, 15 and 21 of the Constitution of India.

Independent Thought v. Union of India, 2017 (179) AIC 1 SC.


Arbitration award to be enforced as decree


Section 35 gives finality to every arbitral award and makes the award binding on the parties and all persons claiming under them. So far as section 36 is concerned, it deals with execution of the award. It says that once the Court dismisses the application filed under section 34 of the Act or if no such application is made and time has expired for making such application, the award shall be enforced as if it is decree of the Court and the enforcement of the award shall be under the Code.
In other words, the arbitral award has been given the status of a decree of the Civil Court and, therefore, it is enforced like a decree of the Civil Court by applying the provisions of Order XXI of the Code and all other provisions, which deal with the execution of the decree of the Civil Court.

Coming to the facts of the case, we find that firstly, the award is under the Act; Secondly, the award was challenged under section 34 by the respondents before the Additional district Judge but the challenge failed vide order dated 03.11.2012 of the Additional District Judge, Jalandhar; Thirdly, the order dated 03.11.2012 attained finality because the matter was not pursued by the respondent in appeal to the High Court; Fourthly, the award in consequence, also attained the finality by virtue of sections 35 and 36 of the Act; fifthly, the award was and continues to be binding on the appellant and the respondents; Sixthly, the award acquired the status of a decree of the Civil Court by virtue of section 36 of the Act; Seventhly, the award has to be enforced for recovery of the awarded amount from the respondents like decree of the Civil Court under the Code.

It is a well-settled principle of law that the Executing Court has to execute the decree as it is and it cannot go behind the decree. Likewise, the Executing Court cannot hold any kind of factual inquiry which may have the effect of nullifying the decree itself but it can undertake limited inquiry regarding jurisdictional issues which goes to the root of the decree and has the effect of rendering the decree nullity (see- Kiran Singh and others v. Chaman Paswan and others).

Hon’ble A.M. Sapre and R. Banumathi, JJ., have held that Order XXI, Rule 1 of the Code prescribes the modes of paying money under the decree, Sub clause (a) provides that the decreetal money has to be deposited in Court or by postal money order or through Bank. Clause(b) provides that amount, if paid out of Court, then it has to be by postal money order or through Bank or by any mode where payment is evidenced in writing. If the payment is made under Clause(b) then Clause (c) prescribes the procedure as to how the money has to be paid and what details are required to be given by the judgment debtor in support of making payment.

Order XXI, Rule 2 of the code deals with the cases where the judgment debtor makes the payment of decreetal amount either full or part out of the Court to the decree holder. Sub-clause (1) empowers the decree holder to apply to the Executing Court to get the amount received from the judgment debtor certified from the Court and it is only when the Court certifies the amount to have been paid, it can be adjusted against the decreetal sum. Clause(2) empowers the judgment debtor to apply to the Executing Court and get the certification done by the Court of the amount paid by them to the decree holder after notice to the decree holder.

Punjab State Civil Supplies Corporation Ltd. v. Atwal Rice and Gerneral Mills, 2017 (179) AIC 58 SC.

 

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