Supreme Court Case Analysis: Independent Thought v. Union of India and Another (2017) 10 SCC 800
The Author, Akanksha Yadav is a 2nd Year student of Maharashtra National Law University. She is currently interning with LatestLaws.com.
In this case, Independent Thought v. Union of India, the petitioner was Independent thought, a registered society which has been working in the welfare of child rights, and the respondents were the Union of India and National Commission for Women.
Section 375 of IPC defines rape and has also a provision dealing with the age of consensual sex as 18. Exception 2 to Section 375 says that a husband can have non-consensual sex with her wife who is between 15 and 18 years of age. The issue raised before the apex court was to decide the legality and constitutionality of Exception 2 to Section 375 of IPC.
The division bench of the Supreme Court gave concurring opinions to decide the case in the favour of petitioner. It read down the Exception 2 to Section 375 of IPC and cleared that anything in the judgement shall not be taken into consideration with the issue of “marital rape”.
In 2013, by the Criminal Law Amendment Act, the age of consent to sexual intercourse was increased from 16 to 18 mentioned under Section 375 of the Indian Penal Code. But, there was an exception clause to this Section i.e., under Exception 2, a husband can have non-consensual sex with a girl child (i.e. below 18 years) if she is above 15 years. In 2012, the POCSO Act was passed which also set the minimum age for the consensual sex as 18 years. Exception 2 was contradictory to the Section 3 of the POCSO act which has criminalized penetrative sexual assault.
The petitioner, Independent Thought is a National Human Rights organization which was registered on 06.08.2009. On 11.06.2013, the petitioner in public interest filed a writ petition under Article 32 of the Constitution challenging the legality and constitutionality of Exception 2 as it was both arbitrary and discriminatory towards the girl child.
In February 2014, the Home Ministry under the United Progressive Alliance (UPA) government filed a counter-affidavit which was also later adopted by the National Democratic Alliance government, in support of the Exception 2. 
Analysis of the Judgement
The Division Bench while deciding whether a husband commits the offence of rape if he has sexual intercourse with her wife who is between 15-18 years of age, commented as follows:
- The Exception 2 of IPC creates an artificial distinction between a married girl child and an unmarried girl child without any reasonable nexus. The artificial distinction is contrary to both Article 15(3) and Article 21 of the Constitution. No other provision in penal laws gives any immunity to the husband. It also violates the bodily integrity and reproductive choice of the girl child and has no measures for trafficking of a girl child. Therefore, it is being arbitrary and discriminatory hindering the best interest of the girl child.
- The parliament has increased both the age of marriage and age of consent from time to time. Currently, a girl child is neither eligible to marry nor give a consent before 18 years. When age has been raised in all the other laws then Exception 2 by keeping the age of consent for a wife 15 year, has become unreasonable, unjust, unfair and violative of the rights of the girl child. Therefore, it is arbitrary and should be set aside.
- The Exception 2 should be read down as follows to make it consistent with the constitution:
“Sexual Intercourse or Sexual acts by a man with his own wife, the wife not being 18 years, is not rape.”
- The issue before the Court is only of marital rape of the girl who is below 18 years and not that of above 18 years. So, the judgement should not be observed in any way for commenting on the issue of “marital rape” of an adult girl.
Per Justice Madan B Lokur
- Article 21 of the Constitution: Under Article 21 of the Constitution, a girl child has a right to live with dignity which is violated by Exception 2 by destroying her bodily integrity and reproductive choice.
- Article 14 of the Constitution (Right to equality): A child is a child whether married or unmarried or divorced or separated or widowed. The rationale of classification between a married and unmarried child in Exception 2 has become non-existent, therefore, making exception arbitrary, unreasonable and violative of the doctrine of equality.
- Article 15 of the Constitution: Under Article 15(3), Parliament has powers to make legislation for the welfare of child and women. POCSO was such a prerogative of Article 15(3) by the legislature. POCSO provisions have overriding effect over any other law. There is an artificial distinction between rape of a married girl child and aggravated penetrative Sexual Assault which is completely arbitrary and discriminatory.
- To harmonise the system of law, Exception 2 to Section 375 of IPC will now be read as stating that sexual intercourse with a wife who is not below 18 years is not a rape.
Per Justice Deepak Gupta (Concurring)
- Fundamental Rights: It is the duty of the court to either strike down or read down the law making it consistent with the constitution if any law violates the Fundamental Rights of the citizens.
- Article 14 of the Constitution: Exception 2 decriminalises the forceful sexual relation by a husband with his wife between of 15-18 years, who is a girl child unable to look for herself, therefore, it is arbitrary. Moreover, it is discriminatory as it is discriminating between an educated girl child who is protected even if she has sexual intercourse whereas, it doesn’t help a married girl between 15-18 years even if she is subjected to have forceful sexual intercourse by her husband. Therefore, Exception 2 being discriminatory and arbitrary is violative of Article 14 of the Constitution.
- Article 21 of the Constitution: Right to life also includes right to live with human dignity. A girl’s right to life also includes the right to develop physically, mentally and economically as an independent self-sufficient female adult.
- Article 15 of the Constitution: Due to the paucity of funds State should not form a law negatively affecting its citizens that too a minor girl child. Relying on Vishaka v. State of Rajasthan, it was said as follows:
A forceful sexual intercourse with a 15 or 16 years old girl child leads her to trauma which is injurious to her body as well as her mind. Exception 2 is violative of Article 14, 15 and 21 of the Constitution as it puts a girl’s both physical and mental health in serious jeopardy.
- As Court has not dealt with the wider issue of “marital rape”, it should be read down as that a husband having sexual intercourse or sexual activity with her wife is not commencing the offence of rape.
Nothing in the judgement can be observed in any way on the issue of “marital rape.”
Independent Thought case has taken a major step to protect the girl child by criminalising the sexual intercourse with a wife below 18 years. But, the Supreme Court had not laid down any special provision for dealing with such cases where the interest of other child is also at stake. It did not consider those cases where the husband is also a minor and would be as innocent as the girl if have consensual sex with her. In India, cases of eloping and marriage are very prevalent, the Apex Court’s ignorance towards such cases just because they can be generalised under the child marriage cases is against the interest of the boy child. The Court also tried to not comment on “marital rape” issue where the girl is above 18 years by emphasising that “marital rape” is not the issue before the court and judgement should not be observed in any way for the issue of “marital rape”. The reasoning court applied for concluding that Exception 2 is violative of Fundamental Rights was equally applicable to a girl above 18 years old whose right to dignity is injured by the forceful sexual relation.
 (2017) 10 SCC 800
 (1997) 6 SCC 241.