Independent Thought v. Union of India (2017)

This is the case that ended the licence a man had over a child bride. Until 2017 the age of consent under the general penal law was eighteen, but a man married to a girl of fifteen or more could have sexual intercourse with her without her consent and commit no offence, because an exception written into the rape section said so. Every other statute in the country treated a person below eighteen as a child. This decision removed the contradiction: intercourse with a wife below eighteen is rape.

For this paper the case sits at the junction of three of its own themes — child marriage, sexual offences against women, and the child's constitutional protection. It is the strongest single authority for the proposition that marriage confers no immunity where the wife is a child, and it is the case to cite whenever a question asks what the law does about the consummation of a child marriage.

There are no disputed facts. The petitioner was a society registered in 2009 working in the area of child rights, which had been involved in legal intervention, research and training on issues concerning children. It filed a petition under Article 32 in public interest, to draw attention to the violation of the rights of girls married between the ages of fifteen and eighteen years.

The legal problem it pointed to was this. The rape section fixed the age of consent at eighteen, so intercourse with a girl below eighteen was rape even with her consent. But the exception to that section said intercourse by a man with his own wife, the wife not being under fifteen years of age, was not rape. The result was that a married girl between fifteen and eighteen had, by statute, no right to decline intercourse with her husband, while an unmarried girl of the same age was fully protected.

The petitioner had given up any prayer to strike the exception down, and no such issue was raised. The Union of India defended the exception on the ground that child marriages are still a stark reality, that a very large number of women in the country had been married before eighteen, and that criminalising the consummation of such a union with an offence as serious as rape would not be appropriate or practical; Parliament had deliberately retained the age of fifteen after wide-ranging consultation, and the Court should not impute ignorance to the legislature.

The Court held that sexual intercourse with a girl below eighteen years of age is rape regardless of whether she is married or not. It did not strike the exception down; it read it down, so that it now protects a husband only where the wife is not below eighteen. Lokur J. put the reading 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. Gupta J., concurring, recorded the same result and added that the judgment will have prospective effect, and that the one-year limitation in s. 198(6) of the Code of Criminal Procedure governs the taking of cognizance in such cases.

Both judges expressly reserved the larger question. Lokur J. said the Court had not at all dealt with the larger issue of marital rape of adult women, since that issue was not raised by the petitioner or the intervener. Gupta J. repeated that nothing said in the judgment is an observation one way or the other on marital rape. The case is not authority on the marital rape of an adult wife.

1. The distinction is artificial and has no rational nexus. The exception created an unnecessary and artificial distinction between a married girl child and an unmarried girl child. That distinction was arbitrary and discriminatory, was not in the best interest of the girl child, and was contrary to Article 15(3) and Article 21 as well as to India's commitments in international conventions, to the bodily integrity of the girl child and to her reproductive choice. Gupta J. added that it turns a blind eye to nothing less than the trafficking of the girl child.

1. Every other statute says eighteen. The Court set the exception against the whole body of law: the child protection statute of 2012, the juvenile justice law, the child marriage laws, the domestic violence law, the majority law, guardianship, contract and the franchise all treat a person below eighteen as a child unable to look after his or her own interests. After the 2013 amendment, the age of consent in the rape section itself was raised to eighteen — but the age in the exception was left at fifteen, with no consequential amendment. The exception was a legislative leftover.

1. The procedure law had already assumed the offence existed. Section 198(6) of the Code of Criminal Procedure bars cognizance of rape by a man of his own wife, the wife being under eighteen, after one year from the offence. The age in that provision had been raised from fifteen to eighteen in 2009. The legislature was therefore already visualising that there can be such an offence against a wife below eighteen — yet no matching change was made to the exception.

1. The child protection statute overrides. Penetrative sexual assault on a child under the 2012 Act carries no marital exception, and that Act declares its provisions to be in addition to and not in derogation of any other law, with overriding effect to the extent of any inconsistency. The exception was therefore inconsistent with a later special statute which must prevail.

1. Choose the reading that makes the system work. Lokur J. treated the problem as one of purposive and harmonious construction. He listed the options open: leave the incongruity alone; strike the exception down; lower the age of consent to fifteen; amend the child protection statute backwards; or read the exception purposively in line with that Act, the spirit of the other pro-child legislation and the human rights of a married girl child. The first was not viable given that the lives of thousands of young girls were at stake; the second was unavailable because the relief had been given up; the third was for Parliament; the fourth would require retrograde amendments to several pro-child statutes. The fifth was the only pragmatic option. Being purposive and harmonious constructionists, the Court adopted it, invoking the principle that where alternative constructions are equally open, the one consistent with the smooth working of the system the statute regulates is to be chosen, and Lord Denning's rule that when a defect appears a judge cannot simply fold his hands and blame the draftsman.

1. Practicality is not a constitutional answer. The Union's case rested on social reality and on respect for Parliament. The Court accepted that a statute carries a presumption of constitutionality and that one should not impute ignorance to the legislature, but held that where a provision is arbitrary and discriminatory it may be struck down or read down; the prevalence of a practice the law already prohibits cannot justify withdrawing the criminal law's protection from its victims.

1. The harm is documented, not assumed. Gupta J. went through the material placed before the Court — census-based studies, the survey data, the World Health Organisation report, a United Nations General Assembly resolution and the Government's own plan of action for children — showing early childbirth, maternal mortality and, in the survey figures, a markedly higher incidence of forced intercourse among wives below eighteen than among adult women.

1. The implementation point. Lokur J. closed by observing that social justice laws are not implemented in the spirit in which Parliament enacts them; child marriages are performed in thousands, even in mass ceremonies on an auspicious day, and it is for the Union and the State Governments to take proactive steps to prevent them.

It opens any question on child marriage, on the age of consent, or on sexual offences within marriage. On child marriage, it is the answer to the question what the legal consequence is of consummating a marriage with a girl below eighteen — the husband commits rape. On the child's rights, it is a working example of Article 15(3) and Article 21 being used to read down a penal provision rather than to strike it down. On method, it is the best short illustration in this paper of harmonious and purposive construction and of the difference between striking down and reading down: quote the five options and the reason each of the other four was rejected.

It disposes of the argument that marriage is a defence to a sexual offence where the wife is a child, and the argument that the prevalence of child marriage is itself a reason to keep the exception. It also disposes of the anomaly that a wife below eighteen was protected by the child protection statute and unprotected by the general penal law at the same moment.

It does not decide the marital rape of an adult wife — both judges said so in terms, and an answer that cites this case for that proposition is wrong. It did not strike down the exception, so the provision survives in its read-down form. The ruling was given prospective effect, and prosecution remains subject to the one-year limitation on cognizance. It also does not make the marriage itself void: the validity of a child marriage is governed by the child marriage legislation, not by this judgment.