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2017 Supreme(SC) 1014

DEEPAK GUPTA, MADAN B.LOKUR
Independent Thought – Appellant
Versus
Union of India – Respondent


Judgement Key Points

Certainly. Based on the provided legal document, the key points are as follows:

  1. The exception to Section 375 of the Indian Penal Code (IPC), which exempts sexual intercourse or acts by a man with his own wife not being under 18 years of age from being classified as rape, should be interpreted in a manner that aligns with constitutional principles and human rights. It should be 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" (!) .

  2. The distinction created by this exception between married girl children and unmarried girls is artificial, unnecessary, and discriminatory. It conflicts with fundamental rights and the constitutional protections afforded to children and women, especially their bodily integrity and reproductive rights (!) (!) (!) .

  3. The law recognizes that a girl below 18 years of age is a child and cannot legally consent to sexual activity or marriage. The age of consent is statutorily fixed at 18 years, and any sexual activity below this age is inherently non-consensual and constitutes an offence, except where the exception applies (!) (!) .

  4. The exception's retention at a lower age (15 years) is based on social realities, customs, and traditions, but these justifications are outdated and do not justify violating the fundamental rights of the girl child. Such a distinction is arbitrary, irrational, and violates constitutional protections (!) (!) (!) .

  5. The exception is also discriminatory because it grants immunity to husbands of girl children between 15 and 18 years, while similarly placed individuals engaging in sexual offences against women of other ages or circumstances do not receive such immunity. This creates a harmful and unequal treatment under the law (!) (!) (!) .

  6. The provisions of special statutes aimed at protecting children, such as the Protection of Children from Sexual Offences (POCSO) Act, take precedence over the IPC, especially where there is inconsistency. The POCSO Act explicitly criminalizes sexual offences against children and provides for stringent punishments, which are overridden by the exception in the IPC (!) (!) (!) .

  7. The law's current framework permits a man to have sexual intercourse with his wife below 18 years of age without it being classified as rape, which is inconsistent with the constitutional rights to dignity, health, and bodily integrity of the girl child. This inconsistency calls for a purposive and harmonious interpretation of all relevant statutes (!) (!) .

  8. The law should evolve to reflect social change and the current understanding of human rights. The justification for retaining the lower age in the exception is inadequate and does not withstand constitutional scrutiny. The exception should be read as applying only when the wife is 18 years or older to align with the age of consent and marriage laws (!) (!) (!) .

  9. The retention of the exception at a lower age is arbitrary and discriminatory, violating the principles of equality and non-discrimination. It undermines the rights of the girl child and perpetuates harmful social practices such as child marriage (!) (!) (!) .

  10. The legislative intent and social realities necessitate a reading of the exception that upholds the rights of the girl child, aligns with international obligations, and ensures the law effectively protects against sexual violence. The appropriate interpretation is that sexual intercourse with a wife below 18 years of age is considered rape, except where the exception is explicitly and constitutionally justified (!) .

These points emphasize the importance of harmonizing laws, recognizing the rights and dignity of the girl child, and ensuring that legal provisions do not perpetuate discrimination or outdated social practices.


JUDGMENT :

Madan B. Lokur, J.

1. The issue before us is limited but one of considerable public importance – whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape? Exception 2 to Section 375 of the Indian Penal Code, 1860 (the IPC) answers this in the negative, but in our opinion sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. The artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child. The artificial distinction is 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. It is also contrary to the philosophy behind some statutes, the bodily integrity of the girl child and her



























































































































































































































































































































































































































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