Exception 2 to Section 375 lays down the marital rape exemption. It reads as follows: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age is not rape.” On 11th of October, the Supreme Court read down exception 2 to Section 375 of the Indian Penal Code (hereinafter referred to as “the exception”). The Court held that sexual intercourse with a girl child under the age of 18 irrespective of the marital status would amount to rape.
The petition was filed by Independent Thought, an NGO working in issues related to child welfare. The petition sought to resolve the inherent contradiction between the Protection of Children from Sexual Offences (POCSO) and the exception 2 to Section 375, Indian Penal Code. It further prayed that the exception must be struck down as unconstitutional to the extent that it exempts non-consensual sexual intercourse with married girls between the ages of 15-18 from the definition of rape.
The Union of India submitted that there are 23 million child brides in India and therefore husbands will become susceptible to criminal prosecution. The Union also submitted that children from such marriages will suffer and the court should not interfere, looking at the socio-economic realities in India. The reply additionally states that it does not wish to criminalise sexual activity between husband and wife and that it is their private matter and it does not wish to interfere.
The Supreme Court held that the exception is unconstitutional as much as it carves out sexual intercourse with a married girl between the ages of 15-18 from the definition of rape on the following grounds:
Article 14: Right to equality before the law, no intelligible differentia and reasonable nexus.
An exception under the right to equality before the law can only arise when it satisfies the test of reasonable classification. Such classification, which differentiates between persons, should be based on intelligible differentia and should further have a reasonable nexus to achieving a legitimate objective.
The SC held that the exception creates an artificial distinction between an unmarried girl child and a married girl child. It further stated that there is no reasonable nexus to a legitimate objective as it is arbitrary and not in the best interest of the girl child. Analysing the Union’s response, the court said the legitimate objective of this distinction and inequality in law is not clear as the Union only admits the occurrence of rampant child marriages.
The absence of intelligible differentia is proven by the fact that the legislature enacted POCSO to criminalise the same act, which is placed under the exception from the definition of rape. Treating an act of non-consensual sexual intercourse under one law (POCSO) and exempting the same act from being defined as rape shows that there is no legitimate objective behind the classification.
Article 15(3) of the Constitution: Affirmative Action
Article 15(3) of the constitution empowers the state to take affirmative action and make laws in favour of women and children. The court states that the exception is contrary to the philosophy of Article 15(3). The preamble to POCSO specifically states that it was enacted by the State in reference to the power vested in it by Article 15(3). Moreover, The Juvenile Justice (JJ) Act is a special legislation enacted for the protection and welfare of children. The court states that legislation, which intends to provide affirmative action for a girl child needs to be liberally construed and interpreted giving it its full effect. It must also override any other legislation, which restricts the benefit given to a girl child.
Article 21 of the Constitution: Right to Life & Personal Liberty
Relying amongst others, on Sucheta Srivastava v. Chandigarh Administration and Selvi v. State of Karnataka, the court asserts that the right to bodily integrity and the right to make reproductive choices comes under the ambit of Article 21 of the Constitution. The court holds that rape, being a heinous crime violates the right to bodily integrity and also affects the survivor’s right to make reproductive choices.
In cases of early marriages, the court analyses various reports and health surveys and concludes that early sexual intercourse could have an adverse impact on the physical and mental health of a girl child. Therefore the exception is a blatant violation of Article 21.
The Court held that as the Government has acceded to the Convention on the Rights of the Child (CRC), it is under an inherent obligation to protect the best interest of the child. Under Article 34 of the CRC, the Government is under an obligation to specifically protect children against sexual exploitation. The Court further relied on Article 16.2 of Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), which condemns child marriage.
Contradiction between POCSO and IPC: Special Law v. General Law
The aim and objective of POCSO stated in the Act makes it amply clear that it was enacted to protect children from offences of sexual assault and sexual harassment. POCSO applies to all children as defined in the Act irrespective of their marital status. Section 2(d) of POCSO defines a child to be any person below the age of 18 years of age. It makes penetrative sexual assault of a child punishable with a minimum imprisonment term of seven years along with fine. Section 375 of The Indian Penal Code also prescribes statutory rape as sexual intercourse with a woman under the age of 18 years. However, the same provision under the Indian Penal Code does not criminalise marital rape unless the wife is less than 15 years of age.
It is a general principle of law that in case of contradiction between special and general law, the special law prevails. Section 42-A of the POCSO states the same. Therefore the court concludes that even though non-consensual sexual intercourse with a married minor girl is exempted from the definition of rape, the act is still prosecutable under the POCSO.
The court also draws a parallel between Section 3 of the POCSO, which defines penetrative sexual assault and the definition of rape under Section 375 of the Indian Penal Code. It states that there is no distinction between the criminalised act in both sections and even the punishment is the same except that the definition of rape is wider in its ambit. The court states that the issue needs to be resolved by interpreting the provisions under the Juvenile Justice Act, The Prohibition of Child Marriage Act, The POCSO and the IPC using the principles of harmonious and purposive construction.
The court states that the only viable option for them is to bring the exception in consonance with POCSO. Hence, it reads down the exception to Section 375 to read as follows: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”
Problematic Areas of the Judgment
Although the judgment is a great victory for the human rights movement and will have a significant impact on the petition pending in the High Court, there are some problematic areas in the judgement.
First, the reading down of the exception into, “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape” still gives legitimacy to marital rape in case the woman is above 18 years of age. Judicial discipline requires judges to not go beyond the relief claimed but Article 142 of the Constitution empowers the SC to make orders, which are necessary to ensure complete justice.
The court could have taken this as an opportunity to strike down the exception as a whole.
Secondly, the reluctance to comment on marital rape in general and making a statement twice to say that nothing said in this judgement should be taken, as an observation to the issue of marital rape is disappointing. Even if the court in its discretionary power wanted to exercise judicial restraint, a more specific reference and discussion on the constitutional validity of the exception would have had a greater impact on the pending cases (for example- in the right to privacy case, J. Chandrachud held that sexual orientation is an integral part of constitutional guarantees under Article 14, 15 and 21 and this will undoubtedly have a significant impact on the Naz curative petition pending in the SC).
The court has also not dealt with the issue of sexual intercourse between consenting adolescents. This could lead to a difficult situation of a 17 year old having consensual sexual intercourse with a girl under the age of 18 and being prosecuted for rape. Further criminalising consensual sexual interactions between adolescents under IPC and POCSO and the requirement of mandatory reporting of teenage pregnancy could create an obstacle to access to safe abortion and other health services.
Implications on RIT v. Union of India
The RIT petition challenges the constitutional validity of the exception to Section 375 irrespective of the age group. The petition prays for a declaration that this exception is unconstitutional as it discriminates against married women sexually assaulted by their own husbands, on the grounds that they do not have the same legal recourse as unmarried women
Although, the SC has restricted its observations to marital rape in case the survivor is between the ages of 15-18, that does not stop the High Court from applying the interpretation of constitutional principles and other laws to the RIT case. Unless there is a constitutional argument to differentiate between married women over 18 and under 18, principles of laws formulated by the SC remain the same and can be applied to the RIT case.
Reliance on International Conventions and Government’s obligation to adhere to it
As mentioned above, the court relied on the Convention on the Rights of a Child and CEDAW in this case and said that the government is under an obligation to give effect to the international obligations. In reference to the challenge to the marital rape exemption, several high level committees have repeatedly recommended the removal of the marital rape exception. The CEDAW in its 37th session urged India to “widen the definition of rape in its Penal Code to reflect the realities of sexual abuse experienced by women and to remove the exception for marital rape from the definition of rape”. In 2014, The Special Rapporteur on Violence Against Women recommended that the amendment of section 375 of the Indian Penal Code 1860 should include a definition of marital rape as a criminal offence and stated that not fully adopting the recommendations of the Justice Verma Committee was a lost opportunity
Reliance on the Justice Verma Committee (JVC) Report & Foreign Cases
The court relied on the JVC report which recommended the removal of the exception altogether and stated that-“a rapist remains a rapist regardless of his relationship with the victim”. The court further relied on cases from other jurisdictions, which do not regard marriage as a defence to rape.
The petitioners in the RIT case have submitted cases from many jurisdictions, which have removed the exemption. The closest example to home is Nepal. The Supreme Court of Nepal in 2002 (FWLD v. HMG) invalidated the provision of the criminal code that exempted rape within marriage. Later, in 2008 (Jit Kumari v. Government of Nepal), it analysed whether the quantum of punishment for marital rape being lower than non-marital rape violated the right to equality under the constitution. The court categorically stated that where the offence is the same, there is no rationality in differentiating between marital and non-marital rape. It further issued a direction to the Ministry of Law, Justice and Parliamentary Affairs to bring about an amendment to settle this discrepancy in the law.
No creation of a new offence
The Supreme Court states that the courts are not empowered to create new offences but in this case, the offence already exists in IPC and more specifically in POCSO. By striking down the exception partly, the court is not creating a new offence but only removing what was unconstitutional. The court relies on Rex v. Clarke in the UK, which dealt with the removal of the exemption and the creation of a new offence in the following words: “This is not the creation of a new offence, it is removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached the conclusion to act upon.”
Hence, even in the case of removal of the entire exception, the court will not be creating a new offence. It will only be removing the inequality in the law so that the definition of rape covers all cases of non-consensual sexual acts irrespective of the marital status.
The court has stated that the resulting situation of the exception is that the husband has the liberty and freedom to have non-consensual sexual intercourse with his wife and not be punished for rape under the IPC. Further it notes the anomaly that while the husband can be prosecuted for outraging a women’s modesty under Section 354, he cannot be prosecuted for rape.
The court has held the exception to be a blatant violation of Article 21, which guarantees the rights to bodily integrity and personal autonomy. In interpreting the principles, the court states that “constitutionally a female has equal rights as a male and no statute should be interpreted or understood to derogate from this position. If there is some theory that propounds such an unconstitutional myth, then that theory deserves to be completely demolished.” Further it states that there is no intelligible differentia on which married minor girls have been classified separately from unmarried minor girls and therefore is a violation of Article 14 of the Constitution. There is also no legitimate objective, which is being achieved through such classification. These arguments can be applied to marital rape in general irrespective of age.
Moreover, as the Union has made similar arguments in both the cases, which the SC has debunked, it is likely to have a significant impact on the case pending in the High Court.
Upasana is an independent Legal Consultant (working on issues related to gender and family law); Former Assistant Professor, Jindal Global Law School