SC HELD : Sexual intercourse by a man with his wife, who is below 18 years of age, is rape.
SECTION 375 OF IPC : It mandates that sex with a girl below 18 years of age, with or without her consent, was a rape. (6th Clause of Section 375)[1]
BUT Exception 2 to Section 375 (rape) of the Indian Penal Code (IPC), which allowed the husband of a girl child — between 15 and 18 years of age — blanket liberty and freedom to have non-consensual sexual intercourse with her.
EFFECT OF THIS EXCEPTION : An unmarried girl child can prosecute her rapist, but a married girl child aged between 15 and 18 could not even do that, leading to injustice.
In this judgement, Independent thought vs Union of India, Supreme Court of India held that exception 2 to Section 375 IPC is arbitrary& violative of the principles enshrined in Article 14, 15 and 21 of the Constitution of India
“A child remains a child whether she is described as a street child or a surrendered child or an abandoned child or an adopted 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 widowed child. At this stage we are reminded of Shakespeare’s eternal view that a rose by any other name would smell as sweet — so also with the status of a child, despite any prefix,” Justice Lokur wrote.
WHY> This exception (to sec.375) is as an artificial distinction, contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in international conventions.[2]
ARTICLE 15(3) : Article 15(3) of the Constitution enables and empowers the State to make special provision for the benefit of women and children.
Government of A.P. v. P.B. Vijayakumar (1995) 4 SCC 520 : It is in order to eliminate this socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and women that Article 15(3) is placed in Article 15. Its object is to strengthen and improve the status of women.
ARTICLE 21 : Child marriage is a social evil that adversely affects the physical and mental health of children, denies them opportunities for education and self-advancement, infringes on their bodily autonomy and deprives them of any role in deciding on many aspects of their lives.
In the modern age, the girl child must be given equal opportunity to develop like a male child. The girl child must be encouraged to bloom into a healthy woman. The girl child must not be deprived of her right of choice. She cannot be treated as a commodity having no say over her body or someone who has no right to deny sexual intercourse to her husband as right to bodily integrity of a girl child and the reproductive choices is available to her.[3]
HUMAN RIGHTS : The human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance.
“ Human rights” as defined under Section 2(d) of Protection of Human Rights Act, 1993 : the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in international covenants and enforceable by courts in India.
There can be no doubt that if a girl child is forced by her husband into sexual intercourse against her will or without her consent, it would amount to a violation of her human right to liberty or her dignity guaranteed by the Constitution or at least embodied in international conventions accepted by India such as the Convention on the Rights of the Child (the CRC) and the Convention on the Elimination of All Forms of Discrimination Against Women (the CEDAW).
WHAT HAPPENS NOW> Therefore, Exception 2 to Section 375 IPC is to be read down as follows: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape”
Those who are already in a child marriage will be forced to live separately till the girl turns 18.
This judgement will have an effect of completely eradicating child marriage.
It also addresses the issue of a husband’s “captive access” of his minor wife.
WAY FORWARD :
Treating all below 18 as children may be good for their care and protection, but whether 18 is the right age for consent in this day and age remains a moot question.
The Supreme Court of India refrained from dealing with the issue of marital rape of a woman aged above 18.
In order to prove effective, such a change needs to be accompanied by a deliberate attempt to shift attitudes that normalise violence in the home. Currently, even in cases of non-marital rape, judges have suggested that rape victims marry their rapist for a “happy conclusion”, which highlights the notion that forced sex does not amount to rape if it takes place within a marriage.
A narrow focus on sexual violence ignores the multiplicity of suffering faced by women and can result in inadequate attention being paid to their other needs. For a woman who is facing domestic violence, it is equally violating if her skull is fractured, her spine is broken, her cornea is damaged, liver is injured, or her vagina is penetrated forcefully. What women object to is the violence involved in the institution of marriage.
FOOT NOTES:
[1] Section 375 of the IPC defines ‘rape’. This section was inserted in the IPC in its present form by an amendment carried out on 3rd February, 2013 and it provides that a man is said to commit rape if, broadly speaking, he has sexual intercourse with a woman under circumstances falling under any ofthe seven descriptions mentioned in the section.
[2] Similar Judgement : Vishakha v. State of Rajasthan, Supreme Court held that sexual harassment of working women amounts to violation of the rights guaranteed by Articles 14, 15 and 23 of the Constitution.
[3] State of Maharashtra v. Madhukar Narayan Mardikar ; In Suchita Srivastava v. Chandigarh Administration the right to make a reproductive choice was equated with personal liberty under Article 21 of the Constitution, privacy, dignity and bodily integrity. It includes the right to abstain from procreating.
