One Step at a Time

By Sourya Banerjee

“Wrong does not cease to be wrong because the majority share in it.” ― Leo Tolstoy

And thus was the concept of Child Marriage in India, outlawed in 1929 by virtue of the Child Marriage Restraint Act However, under colonial rule, the legal minimum age of marriage was set at 15 for girls and 18 for boys. Under protests from Muslim organizations in undivided British India, a piece of personal law, the Shariat Act, was passed in 1937. It allowed child marriage with consent from girl’s guardian.

After independence and the adoption of the Constitution of India in 1950, we had to wait until 2007 when for The Prohibition of Child Marriage Act 2006 (hereinafter referred to as the Child Marriage Act) to come into force on November 1, 2007. This new Act is armed with enabling provisions to prohibit child marriage, to protect and provide relief to victims and to enhance punishment for those who abet, promote or solemnize such marriages. But keeping in mind the traditional, cultural and religious practices in India, the Child Marriage Act kept the status of such marriages as voidable (that which is not null but can be converted into null at the behest of one of the parties) and not void ab initio (null and void inherently). These is where arose a part of the problem, as the status of those women who were child brides, were deemed to be legally married wives under customary law.

A Division Bench of the Supreme Court of India, comprising Justices Madan B Lokur and Deepak Gupta, on October 11, 2017, in the matter of Independent Thought (Petitioners) and The Child Rights Trust (Intervener) vs. Union of India and Others, read down the second exception to Section 375 of Indian Penal Code,1860 (hereinafter referred to as IPC). The provision was struck down for being arbitrary, capricious, whimsical and in violation of the rights of the girl child and for being unfair, unjust and unreasonable and, therefore, in contravention of Articles 14, 15 and 21 of the Constitution of India.

What was the Legal Problem?

Section 375 of the deals with rape, and reads thus:

Section 375. Rape. — A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions: —
(First) — Against her will.
(Secondly) — Without her consent.
(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
(Fourthly) — With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.
(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation. — Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
(Exception) — Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape

The underlined portion above indicates that a husband cannot be accused of raping his legally wedded wife (even if the wife was under eighteen).

On the other hand, the Protection of Children from Sexual Offences Act (hereinafter referred to as the POCSO) Act, 2012, was formulated in order to effectively address sexual abuse and sexual exploitation of children. POCSO defines a child as any person below eighteen and defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography. It deems a sexual assault to be “aggravated” under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority like a family member, police officer, teacher, or doctor.

POCSO criminalizes the very act that the IPC deemed as an exception to criminal liability for the offence of rape.

The crux of the Petitioner’s Case:

The petitioner submitted that absolutely nothing is achieved by entitling the husband of a girl child between 15 and 18 years of age to have non-consensual sexual intercourse with her. It was also submitted that whatever be the (unclear) objective sought to be achieved by this classification, the marital status of the girl child between 15 and 18 has no rational nexus with the obscure object. Moreover, merely because a girl between 15 and 18 is married does not result in her ceasing to be a child or being mentally or physically incapable of having sexual intercourse or indulging in any other sexual activity, or having conjugal relations.

It was submitted that to this extent Exception 2 to Section 375 of the IPC was not only arbitrary but was also discriminatory and contrary to the beneficial intent of Article 15(3) of the Constitution, which enables Parliament to make special provision for women and children. The right of a girl child to bodily integrity and to refuse to have sexual intercourse, a right that is inherent in any child her age, had been taken away statutorily; and, non-consensual sexual intercourse with her husband was not an offence under the IPC.

Law Commission Reports:

The 84th Report of the Law Commission of India (LCI) (April 1980) dealt with the rape of a girl child below the prescribed minimum age. The report considered anomalies in the law relating to rape, particularly in the context of the age of consent for sexual intercourse with a girl. The view of the report was that since the Child Marriage Restraint Act, 1929 prohibited the marriage of a girl below 18, sexual intercourse with a girl child below 18 should also be prohibited, and the IPC should reflect that position, thereby making sexual intercourse with a girl child below 18, an offence.

Unfortunately, this view changed when the LCI presented its 172nd report in March, 2000, recommending that an exception be added to Section 375 of the IPC to the effect that sexual intercourse between a man and his wife, the wife not being under 16, is not sexual assault.

In other words, the earlier recommendation made by the LCI
was not approved. Te age was increased from 15 to 16. According to the LCI, therefore, the husband of a girl aged above 16 could rape his wife, and the assault or rape would not be punishable. If it was punishable, it would amount to excessive interference with
the marital relationship. The recommendations of both, the 84th or the 172nd LCI reports were not considered.

Arguments of the Union of India:

The Union of India referred to the National Family Health Survey — 3 (of 2005) and argued that 46% of women in India between the ages of 18 and 29 were married before the age of 18 and that there are about 23 million child brides in the country. The justification given by the Center for the retention of the second exception can be understod in three parts:

- That by virtue of getting married, the girl child has consented to sexual intercourse with her husband either expressly or by necessary implication.

- That traditionally child marriages were performed in different parts of the country and therefore such traditions must be respected and not destroyed.

- That Paragraph 5.9.1 of the 167th report of the Parliamentary Standing Committee of the Rajya Sabha (March 2013) recorded that several members felt that marital rape has the potential of destroying the institution of marriage.

Fortunately, the Supreme Court refused to accept the arguments of the Central Government, expressly indicating that just because something was merely practiced traditionally did not become the right or just thing. (State of Madhya Pradesh v. Bhopal Sugar Industries Ltd referred).

Documentation Referred By the Supreme Court and its Analysis:

Both, the Petitioners and the Intervenors, offered submitted numerous reports and records to support their case. Some of the important ones included the following:

1) A Statistical Analysis of Child Marriage in India based on Census 2011:

This report was prepared by a collaborative organization called Young Lives and the National Commission for the Protection of Child Rights and was released in June 2017. There is a specific dimension in the discussion on the impact of early child birth on health in which it is stated that “girls aged 15 to 19 [years] are twice more likely than older women to die from childbirth and pregnancy, making pregnancy the leading cause of death in poor countries for these age groups. Girls from the Scheduled Castes and Scheduled Tribes were on an average 10 per cent more likely (after accounting for other variables) to give birth earlier than girls from the other castes.” It has been found that girls most likely to have had a child by 19 (as compared with all other married and unmarried girls) were from the poorest groups; were more likely to live in rural areas; had the least educated mothers; had earlier experiences of menarche; had lower educational aspirations; and were likely to be enrolled in school between the age of 12 and 15 years.
Being young and immature mothers, they had little say in decision-making about the number of children they wanted, their nutrition, health-care and such else. The lack of self-esteem and the lack of a sense of ownership of her own body exposed young women to repeated unwanted pregnancies.

2) In-depth Study on all forms of violence against Women:

On July 6, 2006 the Secretary-General of the United Nations submitted a report to the General Assembly called the “In-depth Study on all forms of violence against women”. In the chapter relating to violence against women within the family and harmful traditional practices, early marriage was listed as one of the commonly identified forms of violence.

3) Study on Child Abuse: India 2007:

It stated that “Minor girls have not achieved full maturity and capacity to act and lack ability to control their sexuality. When they marry and have children, their health can be adversely affected, their education impeded and economic autonomy restricted. Early
marriage also increases the risk of HIV infection.” Among the under-documented forms of violence against women are included traditional harmful practices, prenatal sex selection, early marriage, acid throwing and dowry or “honour”-related violence etc.

4) The Report of the Working Group on the Universal Periodic Review for India (issued on 17th July, 2017 without formal editing) for the 36th Session of the Human Rights Council

This report refers to recommendations made by several countries to remove the exception relating to marital rape from the definition of rape.

The Court’s Assessment

The Court observed that Section 375 of the IPC provides for three circumstances relating to rape. Firstly, sexual intercourse with a girl below 18 years of age is rape (statutory rape). Secondly, and by way of an exception, if a woman is between 15 and 18 years of age then sexual intercourse with her is not rape if the person having sexual intercourse with her is her husband. Her willingness or consent is irrelevant under this circumstance. Thirdly, sexual intercourse with a woman above 18 years of age is rape if it is under any of the seven descriptions given in Section 375 of the IPC (non-consensual sexual intercourse). The result of the above three situations is that the husband of a girl child between 15 and 18 has blanket liberty and freedom to have non-consensual sexual intercourse with his wife and he would not be punishable for rape under the IPC since such non-consensual sexual intercourse is not rape for the purposes of Section 375 of the IPC.

It is interesting to note, however, that if the husband of a girl assaults her with the intention of ‘outraging her modesty,” he would be punishable under the provisions of Section 354 of the IPC. In other words, the IPC permits a man to have non-consensual sexual intercourse with his wife if she is between 15 and 18 but not to molest her. This view was surprisingly endorsed by the LCI in its 172nd report.

It was evidently clear to the Court from referring to legislative documents that the Parliament is not in favour of child marriages per se but is somewhat ambivalent about it. The Parliament recognizes that although child marriage is a crime, the reality of life in India is that traditional child marriages do take place and as the studies (referred to above) reveal, it is a harmful practice. Strangely, despite prohibiting a child marriage and criminalizing it, the marriage itself is not declared void. What is worse, is that sexual intercourse within a child marriage is not rape under the IPC even though it is a punishable offence under the Protection of Children from Sexual Offences Act, 2012.

The Court found that Article 34 of the Convention of Rights of Children (CRC), the Government of India is bound to “undertake all appropriate national, bilateral and multilateral measures to prevent the coercion of a child to engage in any unlawful sexual activity”. The keywords being ‘unlawful sexual activity’ but the IPC declares that a girl child having sexual intercourse with her husband is not ‘unlawful sexual activity’ within the provisions of the IPC, regardless of any coercion. However, for the purposes of the POCSO Act, any sexual activity engaged in by any person (husband or otherwise) with a girl child would be unlawful and a punishable offence. This dichotomy was held by the Court to be certainly not in the spirit of Article 34 of the CRC.

The Bench also referred to the Committee on Amendments to Criminal Law chaired by Justice J.S. Verma (Retired). In paragraphs 72, 73 and 74 of the Report it was stated that the outdated notion that a wife is no more than a subservient chattel of her husband, which originated from the United Kingdom, has since been given up in the United Kingdom. Reference was also made to a decision of the European Commission of Human Rights which endorsed the conclusion that “a rapist remains a rapist regardless of his relationship with the victim.” [C.R. v UK [C.R. v UK Publ. ECHR, Ser.A, №335-C]] Also in Eisenstadt v. Baird the US Supreme Court had observed that a “marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup.”

On a combined reading of C.R. v. UK and Eisenstadt v. Baird, the Supreme Court of India, determined that a rapist remains a rapist and marriage with the victim does not convert him into a non-rapist. Similarly, a rape is a rape whether it is described as such or is described as penetrative sexual assault or aggravated penetrative sexual assault. A rape that actually occurs cannot legislatively be simply wished away or legislatively denied as non-existent.

In terms of the conflict of laws between IPC and POCSO the Supreme Court stated that the most obvious and appropriate resolution of the conflict had already been provided by the State of Karnataka — the State Legislature has inserted sub-Section (1A) in Section 3 of the PCMA declaring that henceforth every child marriage that is solemnized is void ab initio. Therefore, the husband of a girl child would be liable for punishment for a child marriage under the PCMA, for penetrative sexual assault or aggravated penetrative sexual assault under the POCSO Act and if the husband and the girl child are living together in the same or shared household for rape under the IPC.

Final Order:

In consideration of the arguments before it, the Supreme Court decided to read down the Exception 2 to Section 375 IPC as follows:

“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years, is not rape”

The Division Bench made it expressly clear that nothing in this judgment can be deemed to be applicable to marital rape of women above 18 and also clarified that Section 198(6) of the Code of Criminal Procedure 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.

The Bench refused to hold the Section itself as unconstitutional as specific pleadings to the same had not been made.

Conclusion:

The Supreme Court, has passed an extremely well reasoned judgment did manage to harmoniously interpret the law without overstepping its limits. But unfortunately, the concurring Order of Justice Deepak Gupta has a typographical error.

The last part of Para 88 of Justice Gupta’s concurring judgment states,

“Therefore, Exception 2 to Section 375 IPC is 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”.”

Whereas it should have actually been:

“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”

This position is however correctly reflected in Para 105 of Justice Madan B. Lokur’s Order.

As such, this being merely a typographical error, the Supreme Court can by virtue of its powers under Section 362 of Code of Criminal Procedure, rectify the same.