2017 Supreme(SC) 1014

SUPREME COURT OF INDIA
DEEPAK GUPTA , MADAN B. LOKUR, JJ.
Independent Thought - Petitioner
Versus
Union of India and Anr. - Respondents
WRIT PETITION (CIVIL) NO. 382 OF 2013
Decided on : 11-10-2017

IMPORTANT POINT
Exception 2 to Section 375 of the IPC should 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.”
Section 198(6) IPC will apply to cases of rape of “wives” below 18 years, and cognizance can be taken only in accordance with the provisions of Section 198(6) of the Code.

Headnote:Per Madan B. Lokur, J.

       (a) Indian Penal Code, 1860 – Section 375, Exception 2 – Excepting intercourse with married wife of less than 18 years of age from definition of rape – Exception, held, unnecessary and artificial distinction between a married girl child and an unmarried girl child – Contrary to Articles 15(3) and 21, Constitution of India. (Para 1)

       (b) Prevention of Child Marriage Act, 2006 – Corresponding amendments not made in section 375 – Intercourse with child wife continuing to be valid – Not at all advisable – National Policy for Children, 2013 – National Plan of Action for Children, 2016 –Protection of Children from Sexual Offences Act, 2012. (Para 20, 22, 23, 25)

       (c) Indian Penal Code, 1860 – Section 375 – Husband of a girl child between 15 and 18 years of age – Given blanket liberty and freedom to have non-consensual sexual intercourse with his wife – Not punishable for rape – However molesting such girl wife punishable u/s 354 – Protection of Human Rights Act, 1993 – Protection of Women from Domestic Violence Act, 2005 – Prohibition of Child Marriage Act, 2006; section 9 – Conflict between the Code and Act 2006 – Article 15(3), Constitution of India – Article 34, Convention on the Rights of the Child – In direct conflict with section 5(n) and 6, Protection of Children from Sexual Offences Act, 2012. (Para 32, 37, 42, 52)

       (2006) 2 SCC 578 – Referred

       (e) Prohibition of Child Marriage Act, 2006 – Section 3 and 9 – Child marriage not void but voidable u/s 3 – However contracting child marriage an offence – Punishable u/s 9 – Aiding or abating child marriage punishable u/ss 10, 11, 13 and 14. (Para 36)

       (f) Indian Penal Code, 1860 – Section 375 and section 3, POSCO Act, 2013 – Rape – Definition – No material difference between the two provisions – Section 42-A of POSCO Act, a special Act, giving it overriding effect on provisions of any other law, including IPC – Sections 5 and 41, IPC. (Para 48,49)

       (g) Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 2(14) – A girl child below 18 years of age sought to be married – A child in need of care and protection. (Para 51)

       (h) Constitution of India – Article 15(3) – Intending to discriminate in favour of women and children to their advantage – Article 15(3) cannot and ought not to be interpreted restrictively. (Para 54, 58)

       (1995) 4 SCC 520; 1954 SCR 930; PIL No. 166/2016 – Referred

       AIR 1951 Cal 563; AIR 2003 Ker 259 – Cited

       (i) Constitution of India – Article 21 – Right to bodily integrity and reproductive choice – Right of women. (Para 59, 88)

       Girl child not a commodity having no say over her body – She has right t to deny sexual intercourse to her husband – It does not matter whether she is married or not. (Para 64)

       (1991) 1 SCC 57; (2009) 9 SCC 1; (2010) 7 SCC 263; (2013) 2 SCC 357; (2016) 10 SCC 726 – Relied upon

       (j) Rape Laws – Sexual intercourse with wife aged between 15 and 18 years – A rape u/s 375, Indian Penal Code, 1860 and section 5(n), POSCO Act, 2013, notwithstanding Exception 2 of section 375 – Unmarried girl below 18 years of age could be a victim of rape (under IPC) and a victim of penetrative sexual assault (under POCSO Act) – Can prosecute the rapist – A married girl between 15 and 18 years of age could be a victim of aggravated penetrative sexual assault (under POCSO Act) but not a victim of rape (under IPC) by her husband – Girl-child-wife not having recourse provisions of IPC but could prosecute the rapist-husband under POCSO Act – No rationale for such an artificial distinction. (Para 65, 70)

       (2000) 4 SCC 75; (1996) 1 SCC 490; (1996) 2 SCC 384; (2013) 9 SCC 431 – Referred

       (k) Rape law – Rapist remains a rapist – Marriage with the victim does not convert him into a non-rapist – Rape is a rape call it by any name: rape, penetrative sexual assault, or aggravated penetrative sexual assault – Rape that has occurred cannot legislatively be simply wished away or legislatively denied as non-existent. (Para 73)

       Ser.A, No. 335-C; 405 US 438, 31 L Ed 2d 349, 92 S Ct 1092 – Referred

       (l) Indian Penal Code, 1860 – Section 375 (Exception 2) and section 5(n), POSCO Act – Intercourse by husband with married girl child – Not an offence under IPC but an offence under POSCO Act – Harmonisation – Kerala amendment to section 3 (inserting sub-section (1A)) in PCMA declaring child marriages void ab initio – Resultantly, husband having intercourse with girl-child-wife liable to punishment under PCMA, POSCO as well as IPC. (Para 75)

       (m) Rape laws – Marital rape with girl-child below 18 years of age – Consent – Age of consent statutorily fixed at 18 years – Cannot be deviated from – Girl child below 18 years of age cannot be presumed to have given consent expressly or impliedly by virtue of her marriage. (Para 82)

       (n) Sources of law – Custom – Custom of child marriage cannot be sanctified – Customs not keeping pace with changing times may not be acceptable. (Para 83, 87)

       [1964] 6 SCR 846; (1986) 3 SCC 385; (2008) 3 SCC 1; (2008) 5 SCC 287 – Referred

       (o) Marital laws – Institution of Marriage – Marriage is not institutional but personal – Statutes can make marriages illegal but cannot destroy institution of marriage – Divorce and judicial separation – PCMA. (Para 90)

       (p) Rape laws – Rape u/s 375 IPC and aggravated penetrative sexual assault (with married girl-child) u/s 5(n) POSCO – Both are offences – Punishable with similar punishments – Exception 2, section 375 IPC making husband not liable u/s 375 but u/s 5(n) and 6 POSCO – Distinction artificial and incomprehensible. (Para 92, 98)

       (q) Indian Penal Code, 1860 – Sections 5 and 41 – Pro-child statutes like JJ Act and POSCO Act – Special statutes – Shall prevail over IPC – Interpretation of statute – Section 2 (14) (xii) JJ Act – Sections 22 and 42-A, POSCO Act. (Para 93)

       (1981) 1 SCC 315 – Relied upon

       (r) Interpretation of statute – Harmonious and purposive interpretation – Pro-child statutes should be given a harmonious and purposive construction to preserve and protect the human rights of the married girl child. (Para 102)

       [1949] 2 K.B. 481 affirmed in [1950] A.C. 508; AIR 1961 SC 1549; 1989 Supp (1) SCC 589; (2017) 2 SCC 629 – Referred

       Per Deepak Gupta, J. (Concurring)

       (s) Indian Penal Code, 1860 – Section 375 Exception 2 – Girl below 18 years of age – Otherwise unable to give consent for sex – Presumed to be consenting to sex with husband – Such presumption whether unconscionable and violative of Articles 14, 16 and 21 Constitution of India – Prohibition of Child Marriage Act, 2006. (Para 7)

       (t) Indian Penal Code, 1860 – Section 375 Exception 2 – Originally minimum age of consent under clause sixthly and Exception 2, 10 years – Minimum age of consent gradually raised, to 18 years in 1978 – Minimum age under Exception 2 remaining unchanged at 15 years since 1940 – Prohibition of Child Marriage Act, 2006 – Hindu Marriage Act, 1955. (Para 9)

       (u) PCMA – Section 3 and section 3 (1-A) – Child marriage – Not only violates the human rights of a child but also affects the health of the child – U/s 3 (1-A), in Karnataka, marriage with a girl below 18 years of age is void ab initio – Such wife not a legal wife – Husband would not be entitled to benefit of section 375, exception 2, IPC – Can be prosecuted u/s 375 IPC – This should be the law throughout the country. (Para 40, 47)

       2010 (118) DRJ 324(DB); W.P.(Crl.) No.338 of 2008; H.C.P. No. 907 of 2011; Writ Petition No.11154/2006 (GM-RES-PIL) – Cited

       (v) Constitutional law – Division of powers – Each repository of power must respect the other – One cannot and should not impute ignorance to the legislature – Parliament cannot be presumed not to have considered all aspects of the matter while enacting a law – Parliament knowingly deciding not to criminalize sexual activity between husband and wife – Section 375, exception 2, IPC. (Para 48, 50)

       (w) Interpretation of statute – Presumption of constitutionality – Challenge to constitutional validity of a law – Absence of challenge to legislative competent – Presumption of constitutionality of the law arises – Should be upheld unless shown to contravene constitutional provisions or the fundamental rights – Courts are not to decide whether a law is good or bad. (Para 52, 57, 59, 60)

       (1968) 1 SCR 205; (1978) 2 SCC 1; (2008) 4 SCC 720; (2014) 8 SCC 682; (1974) 1 SCC 549 – Relied upon

       (x) Interpretation of statute – Validity – Doctrine of arbitrariness – An enactment can be struck down if shown to be arbitrary – Child marriage below age of 18 viodable (PCMA) – Intercourse with girl below age of 16 years an offence (IPC) Rape – Also an offence under POSCO – Only Exception 2, section 375 IPC legalizing it – Section 375, Exception 2 held arbitrary – An activity per se illegal and criminal activity cannot be legitimised and legalised merely because it is going on for a long time. (Para 62, 69)

       1975 (Supp.) SCC 1; (1973) 4 SCC 225; (1974) 4 SCC 3; (1978) 1 SCC 248; (1984) 3 SCC 316; 1993 Supp (3) SCC 268; (1981) 1 SCC 722; (1996) 2 SCC 226 – Relied upon

       (1996) 3 SCC 709; (2017) Vol. 8 SCALE 178 – Referred

       (y) Constitution of India – Articles 14, 15 and 23 – Marriage of girl child below 18 years of age and sexual intercourse by her husband – Violative of Articles 14, 15 and 23 – Exception 2, Section 375 IPC held arbitrary. (Para 72)

       (1997) 6 SCC 241 – Referred

       (z) Indian Penal Code, 1860 – Section 375 Exception 2 – Minimum age for sexual intercourse by husband – 15 years had relevance when age for marriage and consent were also 15 years – Now that age of marriage and consent is raised to 18 years, keeping age for sexual intercourse at 15, held irrational. (Para 73)

       (aa) Indian Penal Code, 1860 – Section 375, Exception 2 – Making discrimination among girl child below 18 years – Married and unmarried – Depriving girl child between 15 and 18 years of age of her human and fundamental rights – Fixing age at 15 years has no nexus with the object of maintaining the sanctity of marriage because such a marriage is not legal – Exception 2, section 375 is the only provision giving immunity to husband – Provision held not only arbitrary but also discriminatory. (Para 75, 76, 77, 78)

       (ab) Indian Penal Code, 1860 – Section 375, Exception 2 and sections 3, 5, 42 and 42A, POSCO Act – POSCO is a special Act – Its provisions shall prevail over any other law to the extent they are inconsistent – Section 375, Exception 2 held inconsistent with POSCO in providing immunity to husband – Held POSCO will prevail – Reading down Exception 2, section 375 to bring it in consonance with Constitution and POCSO – Issue of privacy not relevant. (Para 80, 81, 85, 86)

       (1888) 22 Q.B.D. 23; (1949) 2 All E.R. 448; (2017) 10 SCALE 1 – Referred

       Facts of the case:

       The question raised in this case is of immense public importance – whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape?

       Finding of the Court:

       Exception 2 to Section 375 of the IPC sanctifies a tradition or custom that is no longer sustainable. It is arbitrary and discriminatory and liable to be struck down.

       This judgment will have prospective effect.

       Result: Exception 2 to section 375, IPC read down.