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INDEPENDENT THOUGHT V/S UNION OF INDIA
The Plaintiff of the case is a group recorded on 6th August 2009 and has been working for child rights. The group provides procedural and hand-holding support to NGOs and government and multidimensional bodies in numerous States in India. They also deal with legal interference, research, and training on issues regarding children and their rights. The association filed a petition under Article 32 A of the Constitution in the public interest and drawing attention to the violation of the rights of girls of 15 to 18 years who are married.
FACTS
According to the plaintiff, Section 375 A of the Indian Penal Code states the age of consent for sexual intercourse as 18 years, i.e., any person having sexual intercourse with a girl child below 18 years of age would be constitutionally guilty of rape even if the sexual activity was with her consent.
Almost every law in India distinguishes a girl below 18 years of age as a child and the law punishes sexual intercourse with a girl who is below 18 years of age.
Unfortunately, by the feature of Exception 2 to Section 375 A of the Code, if a girl between 15 and 18 years of age is married, her husband can have non-consensual sexual intercourse with her, without being punished under the Code, for the sole reason that she is married to him. The right of a girl child to bodily integrity and to decline to have sexual intercourse with her husband has been taken away and non-consensual sexual intercourse with her husband is not an offense under the IPC.
ISSUES
- Is sexual intercourse between a man and his wife who is a girl between 15 and 18 years of age rape?
-Just because a girl between 15 and 18 years of age is married does not result in her not being a child or being mentally/physically capable of having sexual intercourse or being in any sexual activity and marital relation.
- Whether Exception 2 to Section 375 of IPC is biased?
-The discrimination is between a consenting girl child, who is almost an adult, and a non-consenting child bride. - Is the court creating a new offense?
-If this Court strikes down, partially or fully, the Exception 2 to Section 375 of IPC, the Court is creating a new offense.
ARGUMENTS
The first justification by the advocates of the defendant is that while getting married, the girl child has agreed to sexual intercourse with her husband either expressly or by necessary implication.
The second justification is that child marriages have been performed in many parts of the country and hence such practices must be respected and not shattered.
The third justification is that several supporters felt that marital rape has the prospective of destroying the foundation of marriage.
The counsel for the plaintiff stated that absolutely nothing is accomplished by entitling the husband of a girl child of 15 to 18 years to have non-consensual sexual intercourse with her. Just because a girl child of 15 to 18 years of age is married does not make her not being a child or being mentally or physically capable of having sexual intercourse or involving in any other sexual activity and marital relations.
It was stated that to this extent Exception 2 to the Section 375 of the Code is illogical and unfair and conflicting to the beneficial intent of Article 15 (3) of the Constitution which enables the Parliament to make special provisions for women and children. By endorsing Exception 2 to Section 375 of the Code, the girl child is placed at a great disadvantage, different from the idealistic philosophy advocated by Article 15 (3) of the Constitution.
JUDGEMENT
- The Economic and educational development in the country is still rough and child marriages are still taking place. It has been decided to maintain the age of 15 years under Exception 2 of Section 375 of the Code to give protection to husband and wife against criminalizing the sexual activity between them.
- About 46% of women between the ages of 18-29 years in India were married before the age of 18. It is estimated that there are 23 million child brides in the country. Therefore, criminalizing the consummation of a marriage with a serious offense like rape would not be appropriate and practical.
- Giving penalty for child marriages with consent does not appear to be appropriate according to the socio-economic conditions of the country. Hence, the age prescribed in Exception 2 of Section 375 of the Indian Penal Code has been preserved considering the basic facts still evolving social norms.
CONCLUSION
Very strangely, the husband of a girl child does not have the liberty under the IPC to commit a lesser sexual act with his wife, i.e., the IPC allows a man to have non-consensual sexual intercourse with his wife if she is between 15 to 18 years of age but not to molest her. This leads to a situation where the husband can be charged with lesser offenses. This is problematic.
Just because something is happening for a long time is no ground to legalize an illegal activity. The Parliament has stated in both the enactments that a girl below 18 years is not capable of giving consent to having sex and officially she cannot marry. Parliament prohibited child marriage and stated that child marriage is an activity that must end. If sexual intercourse is aggressive and without the consent of the girl child, the husband is not liable for any offense. This law is definitely not just.
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