In the case of Independent Thought vs Union of India on 11 October 2017, the Supreme Court of India grappled with a significant issue of public importance: whether sexual intercourse between a man and his wife, if the wife is a girl between 15 and 18 years of age, constitutes rape. The court ruled that sexual intercourse with a girl below 18 years of age is rape, regardless of her marital status, challenging the exception carved out in Section 375 of the Indian Penal Code, 1860 (IPC), which had previously exempted such cases from being classified as rape.
Facts of the Case
The petitioner, Independent Thought, is a society registered on 6th August 2009, working in the area of child rights. The society filed a petition under Article 32 of the Constitution in public interest, highlighting the violation of rights of girls married between the ages of 15 and 18 years. The society argued that Section 375 of the IPC, which prescribes the age of consent for sexual intercourse as 18 years, contradicts itself by allowing a husband to have non-consensual sexual intercourse with his wife if she is between 15 and 18 years of age, without being penalized under the IPC.
Issues Raised
The petitioner contended that the exception in Section 375 of the IPC creates an artificial and arbitrary distinction between a married girl child and an unmarried girl child. This distinction, they argued, is contrary to the philosophy and ethos of Article 15(3) and Article 21 of the Constitution, as well as India’s commitments in international conventions. The petitioner also highlighted the detrimental impact of this exception on the fight against child trafficking.
Court’s Observations
The court observed that the exception in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child. This distinction, the court noted, is arbitrary and discriminatory and is not in the best interest of the girl child. The court further noted that the exception is contrary to the philosophy and ethos of Article 15(3) of the Constitution, as well as Article 21 of the Constitution and India’s commitments in international conventions.
The court also referred to various reports and studies highlighting the adverse effects of child marriage on the physical and mental health of a girl child, as well as the social consequences that could impact her for the rest of her life. The court noted that a girl child who is married between 15 and 18 years of age could face a variety of problems, including those caused by having sexual intercourse and child-bearing at an early age.
In conclusion, the court ruled that sexual intercourse with a girl below 18 years of age is rape, regardless of whether she is married or not. The court refrained from making any observation with regard to the marital rape of a woman who is 18 years of age and above, as that issue was not before the court.