The Supreme Court recently struck down an exception to Section 375 of the Indian Penal Code that provided protection from rape charges to a man having sexual intercourse with his wife aged between 15 and 18 years. The Court thereby terminated child marital sex, making it a punishable offence, and ended the consent conundrum between India’s rape law and child marriage laws. The Court ruled that Exception 2 to Section 375 of the Indian Penal Code (IPC) is violative of Article 14, 15 and 21 of the Constitution.

The Bench of Justice Madan B Lokur and Justice Deepak Gupta in Independent Thought vs. Union of India and Anr., while declaring that the court has refrained from the larger issue of “marital rape,” read down Exception 2 of Section 375 of the IPC to bring it within the four corners of law and make it consistent with the Constitution of India. The bench opined that the said exception was arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Article 14, 15 and 21 of the Constitution of India. The Court also held it to be inconsistent with the provisions of the Protection of Children from Sexual Offences (POCSO) Act, which, it said, must prevail. Coincidentally, the judgment was delivered on the International Day of the Girl child.

India’s unfortunate and hard reality is the prevalence of child marriages forced by parents. The counter-affidavit filed by the Central government referred to the National Family Health Survey - 3 (of 2005) in which it stated that 46% of women in India aged between 18 and 29 years are married before the age of 18 years. Another disturbing statistic is the estimation that there are about 23 million child brides in the country.

Child marriage has high costs for its victims. A girl child faces several adverse challenges to her physical and mental health, in the process of which she is denied access to education and opportunities for social and economic advancement. In the event of any mishap, she could face harsh consequences for which she would not be empowered to cope with, and which would impact her life adversely.

The judges wrote two separate but concurring judgments. Having struck down the exception that allowed for a girl child to be treated like a commodity having no say over her body and having no human rights, the Court cleared the anomaly created in the laws that specified age of consent and statutory rape. The Court pointed out the injustice in access to justice between an unmarried gild child and a married girl child created by the Exception 2 to Section 375 of the IPC. More significantly, the Court also took notice of the fact that this exception helped in the trafficking of girl child under the guise of marriage.

In para 77 of his judgment, Justice Lokur wrote, “There is no doubt that pro-child statutes are intended to and do consider the best interest of the child. These statutes have been enacted in the recent past though not effectively implemented. Given this situation, we are of opinion that a few facts need to be acknowledged and accepted.

“Firstly, a child is and remains a child regardless of the description or nomenclature given to the child. It is universally accepted in almost all relevant statutes in our country that a child is a person below 18 years of age. Therefore, a child remains a child whether she is described as a street child or a surrendered child or an abandoned child or an adopted child. Similarly, a child remains a child whether she is a married child or an unmarried child or a divorced child or a separated child or a widowed child. At this stage we are reminded of Shakespeare’s eternal view that a rose by any other name would smell as sweet - so also with the status of a child, despite any prefix.

“Secondly, the age of consent for sexual intercourse is definitively 18 years and there is no dispute about this. Therefore, under no circumstance can a child below 18 years of age give consent, express or implied, for sexual intercourse. The age of consent has not been specifically reduced by any statute and unless there is such a specific reduction, we must proceed on the basis that the age of consent and willingness to sexual intercourse remains at 18 years of age.

“Thirdly, Exception 2 to Section 375 of the IPC created an artificial distinction between a married girl child and an unmarried girl child with no real rationale and thereby does away with consent for sexual intercourse by a husband with his wife who is a girl child between 15 and 18 years of age. Such an unnecessary and artificial distinction if accepted can again be introduced for other occasions for divorced children or separated children or widowed children”.

With this, the court ended the disparity between laws and sought to harmonise the IPC with other child protection acts such as the Protection of Children from Sexual Offences (POCSO) Act, the Juvenile Justice (JJ) Act and the Prohibition of Child Marriage (PCMA) Act; all of which recognise any person under the age of 18 as a child.

Justice Gupta in his judgment wrote, “The fact that child marriage is a reprehensible practice; that it is an abhorrent practice; that it violates the human rights of a child, cannot be seriously disputed. I am not oblivious to the harsh reality that most of the child brides are even below the age of 15 years. There is a practice in many parts of the country where children, both girls and boys, are married off, even before they attain puberty. They are innocent children, who do not even understand what marriage is. The practice which is widely prevalent is that a girl who is married pre-puberty is normally kept at her parents’ home and is sent to her matrimonial home after she attains puberty in a ceremony which is commonly referred to as ‘gauna’. Can the marriage of a child aged 3-4 years, by any stretch of imagination, be called a legal and valid marriage?”

The Court also came down on the Government for trying to legitimise the exception clause. The Union of India gave a justification that since a large number of child marriages are taking place, it would not be proper to criminalise the consummation of such child marriages. It urged that, keeping in view age old traditions and evolving social norms, the practice of child marriage cannot be wished away and, therefore, legislature in its wisdom has thought it fit not to criminalise the consummation of such child marriages.

Justice Gupta came down on the Centre’s stand and stated, “I am not impressed with the arguments raised by the Union of India. Merely because something is going on for a long time is no ground to legitimise and legalise an activity which is per se illegal and a criminal offence. No doubt, it is totally within the realm of Parliament to decide what should be the age of consent under clause Sixth of Section 375 IPC. It is also within the domain of the Parliament to decide what should be the minimum age of marriage. The Parliament has decided in both the enactments that a girl below 18 years is not capable of giving consent to have sex and legally she cannot marry. Parliament has also, in no uncertain terms, prohibited child marriage and come to the conclusion that child marriage is an activity which must come to an end. If that be so, can the practice of child marriage which is admittedly “an evil”, and is also a criminal offence be set up as an exception in a case of a girl child, who is subjected to sexual intercourse by her so called husband. Shockingly, even if this sexual intercourse is forcible and without the consent of the girl child, then also the husband is not liable for any offence. This law is definitely not right, just and fair and is, therefore, arbitrary”.

Justice Lokur wrote, “justifications given by the Union of India are really explanations for inserting Exception 2 in Section 375 of the IPC. Besides, they completely side track the issue and overlook the provisions of the PCMA, the provisions of the JJ Act as well as the provisions of the POCSO Act. Surely, the Union of India cannot be oblivious to the existence of the trauma faced by a girl child who is married between 15 and 18 years of age or to the three pro-child statutes and other human rights obligations. That these facts and statutes have been overlooked confirms that the distinction is artificial and makes Exception 2 to Section 375 of the IPC all the more arbitrary and discriminatory”.... “further but more substantive justifications were given by learned counsel for the Union of India for making this distinction.

“The first justification is that by virtue of getting married, the girl child has consented to sexual intercourse with her husband either expressly or by necessary implication. The second justification is that traditionally child marriages have been performed in different parts of the country and therefore such traditions must be respected and not destroyed”.... “In law, it is difficult to accept any one of these justifications. There is no question of a girl child giving express or implied consent for sexual intercourse. The age of consent is statutorily and definitively fixed at 18 years and there is no law that provides for any specific deviation from this.

“Therefore unless Parliament gives any specific indication (and it has not given any such indication) that the age of consent could be deviated from for any rational reason, we cannot assume that a girl child who is otherwise incapable of giving consent for sexual intercourse has nevertheless given such consent by implication, necessary or otherwise only by virtue of being married. It would be reading too much into the mind of the girl child and assuming a state of affairs for which there is neither any specific indication nor any warrant. It must be remembered that those days are long gone when a married woman or a married girl child could be treated as subordinate to her husband or at his beck and call or as his property. 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.”

This judgment by the Hon’ble Supreme Court, provided it is well propagated by the institutional machinery, is expected to play a massive role in discouraging the practice of child marriage in India.

Child marriage is an obstacle to the development of a young mind. Besides impacting population growth, it has a negative impact on girl child’s access to basic and higher or vocational education, their health and nutritional status, ability to make their own decisions, and earn and manage their incomes. The development of an adolescent mind is cut short by imposition of child marriage as critical years of self-discovery are lost, as is the power to make important life-decisions regarding employment or even access to sexual and reproductive health.

Indian society faces serious problems of early pregnancies, problems of maternal and neonatal mortality, child health problems, and high levels of domestic abuse of the girl child. The health problems of children born to teenage mothers are equally serious. A combination of all these factors tends to push families into a cycle perpetual poverty from which exit is impossible for most. The Supreme Court ruling offers a way out of the dilemma.

The author is a Delhi-based advocate and freelance journalist; Twitter: @rijuluppal