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Independent Thought v. Union of India

Writ Petition (Civil) · 2017 INSC 1030Decided 11 Oct 2017
Writ Petition (Civil) No. 382 of 2013
Justice Madan B. Lokur · Justice Deepak Gupta

Background

Independent Thought, an NGO working on child rights, filed a public interest writ petition challenging Exception 2 to Section 375 of the Indian Penal Code, which stated that sexual intercourse by a man with his own wife, as long as she was not below 15 years of age, was not rape, even though the general age of consent for sex was 18. The petitioner argued this created an unfair and arbitrary distinction between married and unmarried girls aged 15 to 18, leaving married girl children without the legal protection against rape that unmarried girls of the same age had.

Decision Breakdown

The Supreme Court held that the exception was arbitrary, discriminatory, and violated Articles 14, 15 and 21 of the Constitution, since it had no rational basis for treating a married girl child differently from an unmarried one and ignored the realities of child marriage and trafficking. The Court also found the exception inconsistent with the Protection of Children from Sexual Offences (POCSO) Act, which treats all children under 18 equally and must prevail over the IPC where the two conflict. It therefore read down Exception 2 to raise the age threshold from 15 to 18, meaning sexual intercourse with a wife below 18 years of age is now rape, regardless of marriage, while making clear the ruling applies only prospectively and does not address the separate, broader question of marital rape of adult (18+) wives, which was left untouched. Justice Deepak Gupta wrote a separate concurring opinion reaching the identical conclusion through additional reasoning.

Lesson Learnt

Marriage does not strip a girl child of her legal protection against rape: a husband having sexual intercourse with his wife when she is under 18 is now a criminal offence in India, regardless of any marriage, and courts will strike down laws that arbitrarily treat married and unmarried children differently.

Official source (sci.gov.in)View Judgment (PDF)

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