REPORTABLE

 IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 382 OF 2013

Independent Thought    .….Petitioner  

versus

Union of  India and Anr.   ….Respondents  

J U D G M E N T

Madan B. Lokur, J.

1. The  issue  before  us  is  limited  but  one  of  considerable  public

importance – whether sexual intercourse between a man and his wife being a

girl between 15 and 18 years of age is rape? Exception 2 to Section 375 of

the Indian Penal Code, 1860 (the IPC) answers this in the negative, but in

our opinion sexual  intercourse with a  girl  below 18 years  of  age is  rape

regardless of whether she is married or not. The exception carved out in the

IPC creates an unnecessary and artificial distinction between a married girl

child and an unmarried girl child and has no rational nexus with any unclear

objective sought to be achieved.  The artificial  distinction is arbitrary and

             W.P. (C) No. 382 of 2013 Page 1

discriminatory and is definitely not in the best interest of the girl child. The

artificial distinction is contrary to the philosophy and ethos of Article 15(3)

of the Constitution as well as contrary to Article 21 of the Constitution and

our  commitments  in  international  conventions.  It  is  also  contrary  to  the

philosophy behind some statutes, the bodily integrity of the girl child and

her reproductive choice. What is equally dreadful, the artificial distinction

turns a blind eye to trafficking of the girl child and surely each one of us

must discourage trafficking which is such a horrible social evil.  

2. We make it clear that we have refrained from making any observation

with regard to the marital rape of a woman who is 18 years of age and above

since that issue is not before us at all. Therefore we should not be understood

to advert to that issue even collaterally.  

The writ petition  

3. The petitioner is a society registered on 6th August, 2009 and has since

been working in the area of child rights. The society provides technical and

hand-holding  support  to  non-governmental  organizations  as  also  to

government and multilateral bodies in several  States in India. It  has also

been  involved  in  legal  intervention,  research  and  training  on  issues

concerning children and their rights. The society has filed a petition under

Article 32 of the Constitution in public interest with a view to draw attention

             W.P. (C) No. 382 of 2013 Page 2

to the violation of the rights of girls who are married between the ages of 15

and 18 years.

4. According to the petitioner, Section 375 of the IPC prescribes the age

of  consent  for  sexual  intercourse  as  18  years  meaning  thereby  that  any

person having sexual intercourse with a girl  child below 18 years of age

would be statutorily guilty of rape even if the sexual activity was with her

consent. Almost every statute in India recognizes that a girl below 18 years

of  age  is  a  child  and  it  is  for  this  reason  that  the  law penalizes  sexual

intercourse with a girl who is below 18 years of age. Unfortunately, by virtue

of Exception 2 to Section 375 of the IPC, if a girl child between 15 and 18

years  of  age  is  married,  her  husband  can  have  non-consensual  sexual

intercourse with her, without being penalized under the IPC, only because

she is married to him and for no other reason. The right of such a girl child

to  bodily  integrity  and  to  decline  to  have  sexual  intercourse  with  her

husband  has  been  statutorily  taken  away  and  non-consensual  sexual

intercourse with her husband is not an offence under the IPC.  

5. Learned counsel for 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

             W.P. (C) No. 382 of 2013 Page 3

this, the marital status of the girl child between 15 and 18 years of age has

no rational nexus with that unclear object. Moreover, merely because a girl

child  between 15 and 18 years  of  age  is  married  does  not  result  in  her

ceasing to  be  a  child  or  being mentally  or  physically  capable  of  having

sexual  intercourse or  indulging in  any other  sexual  activity and conjugal

relations. It was submitted that to this extent Exception 2 to Section 375 of

the IPC is not only arbitrary but is 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. In fact, by

enacting Exception 2 to Section 375 of the IPC in the statute book, the girl

child  is  placed  at  a  great  disadvantage,  contrary  to  the  visionary  and

beneficent philosophy propounded by Article 15(3) of the Constitution.

Law Commission of India – 84th Report

6. Learned counsel for the petitioner drew our attention to the 84th report

of the Law Commission of India (LCI) presented on 25th April, 1980 dealing

with the rape of a girl child below the prescribed minimum age. The report

considered  the  anomalies  in  the  law  relating  to  rape,  particularly  in  the

context of the age of consent for sexual intercourse with a girl child. The

view expressed by the LCI is quite explicit and is to be found in paragraph

2.18, 2.19 and 2.20 of the report. The view is that since the Child Marriage

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Restraint Act, 1929 prohibits the marriage of a girl below 18 years of age,

sexual intercourse with a girl child below 18 years of age should also be

prohibited and the IPC should reflect that position thereby making sexual

intercourse  with  a  girl  child  below  18  years  of  age  an  offence.  These

paragraphs read as follows:

2.18. Section  375,  fifth  clause. –  The  discussion  in  the  few preceding paragraphs was concerned with rape constituted by sexual intercourse without consent.   The fifth clause of section 375 may now be considered.  It is concerned with sexual intercourse with a woman under 16 years of age.  Such sexual intercourse is an offence irrespective of the consent of the woman. 2.19. History. – The age of consent has been subjected to increase more  than  once  in  India.   The  historical  development  may,  for convenience, be indicated in the form of a chart as follows:-

Year Age  of consent under  sec. 375,  5th clause, I.P.C.

Age mentioned  in the  Exception to  sec.  375, I.P.C

Minimum  age  of marriage  under the  Child Marriage Restraint  Act, 1929

1860…… 10 years 10 years __ 1891 (Act 10 of 1891) (after the amendment of I.P.C.

12 years 12 years __

1925 (after the  amendment of I.P.C.)

14 years 13 years __

1929  (after  the  passing of  the  Child  Marriage Act)

14 years 13 years 14 years

1940 (after the  amendment of the Penal Code and the Child  Marriage Act)

16 years 15 years 15 years

1978…… 16 years 15 years 18 years [as of 2017]* *The bracketed portion  

[Age of consent under

[15 years] [Minimum age of marriage under the

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in this row has been  inserted by us.

Sec. 375, Sixthly of the

IPC - 18 years]

PCMA, 2006  – 18(F)/21(M)

years]

2.20. Increase in minimum age. – The question to be considered is whether the age should be increased to 18 years.  The minimum age of marriage now laid down by law (after 1978) is 18 years in the case of females and the relevant clause of Section 375 should reflect this changed attitude.  Since marriage with a girl below 18 years is prohibited (though it is not void as a matter of personal law), sexual  intercourse  with  a  girl  below 18  years  should  also  be prohibited. (Emphasis supplied by us).

Law Commission of India – 172nd Report

7. The issue was re-considered by the LCI in its 172nd report presented

on 25th March, 2000. In that report, it is recommended that an exception be

added to Section 375 of the IPC to the effect that sexual intercourse by a

man with his own wife, the wife not being under 16 years of age, is not

sexual assault. In other words, the earlier recommendation made by the LCI

was not approved.  

8. Apparently at the stage of discussions, the recommendation of the LCI

(still at the stage of proposal) did not find favour with an NGO called Sakshi

who suggested deletion of the exception. According to the NGO, “where a

husband causes some physical injury to his wife, he is punishable under the

appropriate offence and the fact that he is the husband of the victim is not an

extenuating circumstance recognized by law.” Therefore, there is no reason

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why a concession should be made in the matter of an offence of rape/sexual

assault only because the wife happens to be above 15/16 years of age. The

LCI did not agree with the NGO and the reason given is that if the exception

that is recommended is deleted, it “may amount to excessive interference

with  the  marital  relationship.”  In  other  words,  according  to  the  LCI  the

husband of a girl child who is not below 16 years of age can sexually assault

and even rape his wife and the assault or rape would not be punishable -  and

if it is made punishable, then it would amount to excessive interference with

the marital relationship. (It may be mentioned that Exception 2 to Section

375 of  the  IPC has  not  increased the  age  to  16 years  from 15 years  as

recommended by the LCI but has retained it at 15 years. According to the

counter affidavit filed on behalf of the Union of India, the age of 15 years

has  been  kept  to  give  protection  to  the  husband  and  the  wife  against

criminalizing the sexual activity between them).

Counter affidavit of the Union of India

9. Since we have adverted to the counter affidavit filed by the Union of

India opposing the writ petition, we propose to make a very brief reference

to it. A somewhat more detailed reference is made to the counter affidavit of

the Union of India at a later stage.  

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10. For the present, the counter affidavit of the Union of India refers to

the National Family Health Survey - 3 (of 2005) in which it is stated that

46% of women in India between the ages of 18 and 29 years were married

before the age of 18 years. It is also estimated, interestingly but disturbingly,

that there are about 23 million child brides in the country. As far as any

remedy available to a child bride is concerned, the counter affidavit draws

attention to Section 3 of the Prohibition of Child Marriage Act, 2006 (the

PCMA). Under Section 3(1) of the PCMA a child marriage is voidable at the

option of any contracting party who was a child at the time of the marriage.

The marriage can be declared a nullity in terms of the proviso to Section

3(1) of the PCMA through an appropriate petition filed by the child within

two years of attaining majority and by approaching an appropriate court of

law. It is also stated that in terms of Section 13(2)(iv) of the Hindu Marriage

Act, 1955 a child bride can petition for a divorce on the ground that her

marriage (whether consummated or not) was solemnized before she attained

the age of 15 years and she has repudiated the marriage after attaining that

age but before attaining 18 years of age. In other words a child marriage is

sought to be somehow ‘legitimized’ by the Union of India and the onus for

having it declared voidable or a nullity is placed on the child bride or the

child groom.   

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Documentary material  

11. Apart from but in addition to the legal issue, learned counsel for the

petitioner and learned counsel for the intervener (The Child Rights Trust)

relied  on  a  large  amount  of  documentary  material  to  highlight  several

adverse challenges that a girl child might face on her physical and mental

health and some of them could even have an inter-generational impact if a

girl child is married below 18 years of age. The girl child could also face

adverse social consequences that might impact her for the rest of her life.  

(a) Reference was made to a report  “Delaying Marriage for Girls  in

India:  A  Formative  Research  to  Design  Interventions  for

Changing Norms”. This report was prepared in March 2011 under

the supervision of UNICEF India.

(b) Reference was also made to a report “Reducing Child Marriage in

India: A Model to Scale up Results”. This report was prepared in

January 2016 and also under the supervision and guidance of UNICEF

India.  The  report  contains  statistics  of  widowed,  separated  and

divorced girls  who were  married  between  10 and 18 years  of  age

based on Census 2011.  

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(c) Reference was also made to a useful study “Economic Impacts of

Child Marriage: Global Synthesis Report” released in June 2017.

This report  is  a  collaborative effort  by the International  Centre for

Research on Women and the World Bank and it deals with the impact

of child marriages on (i) fertility and population growth; (ii) health,

nutrition, and intimate partner violence; (iii) educational attainment;

(iv) labour force participation, earnings and welfare, and (v) women’s

decision-making  and  other  impacts.  The  economic  cost  of  child

marriages and implications has also been discussed in detail  in the

report. A child marriage is defined as a marriage or union taking place

before the age of 18 years and this definition has been arrived at by

relying  on  a  number  of  conventions,  treaties  and  international

agreements as well as resolutions of the UN Human Rights Council

and the UN General Assembly.

(d)  Another extremely useful report referred to is “A Statistical Analysis

of Child Marriage in India based on Census 2011”. This report is

prepared by a collaborative organization called Young Lives and the

National  Commission  for  the  Protection  of  Child  Rights  and  was

released quite recently in June 2017.

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12. This refers to the consequences of child marriage in Chapter 5.

Broadly, it is stated :

“Child marriage is not only a violation of human rights, but is also recognized as an obstacle to the development of young people.  The practice of child marriage cut shorts a critical stage of self-discovery and exploring one’s identity.  Child marriage is an imposition of a marriage partner on children or adolescents who are in no way ready and matured, and thus, are at a loss to understand the significance of marriage.  Their development gets comprised due to being deprived of freedom, opportunity for personal development, and other rights including health and well-being, education, and participation in civic life  and  nullifies  their  basic  rights  as  envisaged  in  the  United Nation’s Convention on the Right of the Child ratified by India in 1989.  Marriage at a young age prevents both girls and boys from exercising agency in making important life decisions and securing basic  freedoms,  including  pursuing  opportunities  for  education, earning  a  sustainable  livelihood  and  accessing  sexual  health  and rights.” ………..

“The key consequences  of  child marriage of  girls may include early  pregnancy;  maternal  and  neonatal  mortality;  child  health problems;  educational  setbacks;  lower  employment/livelihood prospects;  exposure  to  violence  and  abuse,  including  a  range  of controlling  and  inequitable  behaviours,  leading  to  inevitable negative  physical  and  psychological  consequences;  and  limited agency of girls to influence decisions about their lives.  

Census data have demonstrated an upswing of female deaths in the age group of 15-19 years. This high mortality rate could be attributed to the deaths of teenage mothers.   Child marriage virtually works like  a double-edged sword;  lower age at  marriage is  significantly associated with worse outcomes for the child and worse pregnancy outcomes  for  the  mother.   All  these  factors  push  girls  and  their families  into  perpetuation  of  intergenerational  poverty  and marginalization.  The impact of early marriage on girls - and to a lesser extent on boys - is wide-ranging, opines the Innocenti Digest on  child  marriage.   Child  brides  often  experience  overlapping vulnerabilities - they are young, often poor and undereducated.  This affects  the  resources  and  assets  they  can  bring  into  their  marital household,  thus  reducing  their  decision-making  ability.   Child marriage places a girl  under the control of her husband and often

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in-laws,  limiting  her  ability  to  voice  her  opinions  and  form  and pursue  her  own  plans  and  aspirations.   While  child  marriage  is bound  to  have  a  detrimental  effect  on  boys  who  would  need  to shoulder the responsibility of a wife and in most cases, have to also discontinue their education, there is very little research evidence to capture the long term economic and psychological  effect on boys who  are  married  early.   The  Lancet  2015  acknowledges  that adolescent boys are not important and neglected part of the equation. The  assumption  that  girls  need  more  attention  than  boys  is  now being challenged.  

Looking at the impact of early marriage from rights perspective, it can  be  said  that  the  key  concerns  are  denial  of  childhood  and adolescence,  curtailment  of  personal  freedom,  deprivation  of opportunities  to  develop  a  full  sense  of  selfhood  and  denial  of psychosocial  and  emotional  well-being  reproductive  health  and educational opportunity along with consequences described earlier.” (Emphasis supplied by us).

13. There is a specific discussion in the Statistical Analysis 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 years (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 education aspirations; and were

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less likely to be enrolled in school  between the age of  12 and 15 years.

Being young and immature mothers, they have little say in decision-making

about the number of children they want, nutrition, health-care etc.  Lack of

self-esteem or of a sense of ownership of her own body exposes a woman to

repeated unwanted pregnancies.

14. There  is  also  a  useful  discussion  on  violence,  neglect  and

abandonment;  psychosocial  disadvantage;  low self-esteem;  low education

and  limited  employability;  human  trafficking  and  under-nutrition,  all  of

which are of considerable importance for the well-being of a girl child.

We are not dealing with these reports in any detail  but draw attention to

them since they support the view canvassed by learned counsel. All that we

need say is that a reading of these reports gives a good idea of the variety

and magnitude of problems that a girl child who is married between 15 and

18 years of age could ordinarily encounter, including those caused by having

sexual intercourse and child-bearing at an early age.  

In-depth Study on all forms of violence against women

15. On  6th July,  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

             W.P. (C) No. 382 of 2013 Page 13

marriage was one of the commonly identified forms of violence.1 Similarly,

early marriage was considered a harmful traditional  practice2 -  a  thought

echoed a year later in the  Study on Child Abuse: India 2007 (referred to

later) by the Government of India.  

16. An early marriage is explained as involving the marriage of a child,

that is, a person below the age of 18 years. It is 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.3

17. On  the  concern  of  appropriate  legislation  to  deal  with  issues  of

violence  against  women,  the  right  of  a  woman  to  bodily  integrity  and

legislations that allow early marriages, the Secretary General had this to say:

“The treaty bodies have expressed concerns about the scope and coverage  of  existing  legislation,  in  particular  in  regard  to:

1 Paragraph 111

2 Paragraph 118

3 Paragraph 222

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definitions of rape that require use of force and violence rather than lack of consent;  definitions of domestic violence that are limited to physical violence; treatment of sexual violence against women as crimes against the honour of the family or crimes against decency rather than violations of women’s right to bodily integrity; use of the defence of “honour” in cases of violence against women and the related  mitigation  of  sentences;  provisions  allowing  mitigation  of sentences  in  rape cases  where  the  perpetrator  marries  the  victim; inadequacy of protective measures for trafficked women, as well as their  treatment  as  criminals  rather  than  victims;  termination  of criminal  proceedings  upon  withdrawal  of  a  case  by  the  victim; penalization  of  abortion  in  rape  cases;  laws that  allow early  or forced marriage; inadequate penalties for acts of violence against women; and discriminatory penal laws.”4 (Emphasis supplied by us)

National Policy and National Plan

18. What has been the response of the Government of India to studies

carried out from time to time and views expressed? The National Charter for

Children, 2003  was notified on 9th February, 2004. While it failed to define

a  child,  we  assume  that  it  was  framed  keeping  in  mind  the  generally

accepted  definition of  a  child  as  being someone below 18 years  of  age.

Proceeding on this basis, for the present purposes, Clause 11 of the National

Charter is of relevance in the context of child marriages. It recognized that

child marriage is a crime and an atrocity committed against the girl child. It

also provided for taking “serious measures” to speedily abolish the practice

of child marriage. Clause 11 reads:

4 Paragraph 277

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“11.  a.  The  State  and  community  shall  ensure  that  crimes  and atrocities committed against the girl child, including child marriage, discriminatory  practices,  forcing  girls  into  prostitution  and trafficking are speedily eradicated. b.  The  State  shall  in  partnership  with  the  community  undertake measures,  including  social,  educational  and  legal,  to  ensure  that there is greater respect for the girl child in the family and society. c. The State shall take serious measures to ensure that the practice of child marriage is speedily abolished.”

19. As a first step in this direction, child marriages were criminalized by

enacting the PCMA in 2006 but no corresponding amendment was made in

Section 375 of the IPC, as it existed in 2006, to decriminalize marital rape of

a girl child.

20. The  National  Charter  was  followed  by  the  National  Policy  for

Children notified  on  26th April,  2013.   The  National  Policy  explicitly

recognized in Clause 2.1 that every person below the age of 18 years is a

child.  Among  the  Guiding  Principles  for  the  National  Policy  was  the

recognition that every child has universal, inalienable and indivisible human

rights; every child has the right to life,  survival,  development,  education,

protection  and  participation;  the  best  interest  of  a  child  is  the  primary

concern in all decisions and actions affecting the child, whether taken by

legislative bodies, courts of law, administrative authorities, public, private,

social, religious or cultural institutions.

21. The large ‘to do list’ in the National Policy led to the National Plan

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of Action for Children, 2016: Safe Children – Happy Childhood.   The

National Plan appears to have been made available on 24th January, 2017.

While dealing with child marriage, it is stated as follows:

“In India, between NFHS-3 (2005-06) to RSOC (2013-14), there has been a considerable decline in the percentage of women, between the ages 20-24, who were married before the age of 18 (from 47.4% to 30.3%).  The incidence is higher among SC (34.9%) and ST (31%) and in families with lowest wealth index (44.1%).  Child marriage violates  children’s basic  rights  to  health,  education,  development, and protection and is also used as a means of trafficking of young girls.

Child  marriage  leads  to  pregnancy  during  adolescence,  posing life-threatening risks to both mother and child.  It is indicated by the Age-specific Marital Fertility Rate (ASMFR) which is measured as a number of births per year in a given age group to the total number of married women in that age group.  SRS 2013 reveals that in the age group of 15-19 years; there has been an upward trend during the period 2001-2013.  ASMFR is higher in the age group 15-19 years in comparison to 25-29 years.”

22. The National  Plan of  Action for Children recognizes that the early

marriage of girls is one of the factors for neo-natal deaths; early marriage

poses various risks for the survival, health and development of young girls

and to children born to them and most  unfortunately it  is  also used as a

means of trafficking.

23. A reading of the National Policy and the National Plan of Action for

Children reveals, quite astonishingly, that even though the Government of

India  realizes  the  dangers  of  early  marriages,  it  is  merely  dishing  out

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platitudes and has not taken any concrete steps to protect the girl child from

marital  rape,  except  enacting  the  Protection  of  Children  from  Sexual

Offences Act, 2012.  

Human Rights Council

24. 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 refers to recommendations made by

several countries to remove the exception relating to marital rape from the

definition of rape in Section 375 of the I.P.C.  In other words,  the issue

raised by the petitioner has attracted considerable international attention and

discussion and ought to be taken very seriously by the Union of India.

25. In our opinion, it is not necessary to detail the contents of every report

or study placed before us except to say that there is a strong established link

between  early  marriage  and  sexual  intercourse  with  a  married  girl  child

between 15 and 18 years of age. There is a plethora of material to clearly

indicate that sexual intercourse with a girl child below the age of 18 years

(even within marriage) is not at all advisable for her for a variety of reasons,

including her physical and mental well-being and her social standing – all of

which  should  ordinarily  be  of  paramount  importance  to  everybody,

particularly the State.  

             W.P. (C) No. 382 of 2013 Page 18

26. The  social  cost  of  a  child  marriage  (and  therefore  of  sexual

intercourse with a girl child) is itself quite enormous and in the long run

might not even be worth it. This is in addition to the economic cost to the

country  which  would  be  obliged  to  take  care  of  infants  who  might  be

malnourished and sickly; the young mother of the infant might also require

medical  assistance  in  most  cases.  All  these  costs  eventually  add  up  and

apparently only for supporting a pernicious practice.   

27. We can only express the hope that the Government of India and the

State Governments intensively study and analyze these and other reports and

take an informed decision on the effective implementation of the PCMA and

actively prohibit child marriages which ‘encourages’ sexual intercourse with

a girl child. Welfare schemes and catchy slogans are excellent for awareness

campaigns  but  they  must  be  backed  up  by  focused  implementation

programmes, other positive and remedial action so that the pendulum swings

in favour of the girl child who can then look forward to a better future.    

Provisions of the Indian Penal Code (IPC)

28. Section 375 of the IPC defines ‘rape’.  This section was inserted in the

IPC in its present form by an amendment carried out on 3rd February, 2013

and it provides that a man is said to commit rape if, broadly speaking, he has

sexual intercourse with a woman under circumstances falling under any of

             W.P. (C) No. 382 of 2013 Page 19

the seven descriptions mentioned in the section. (A woman is defined under

Section 10 of the IPC as a female human being of any age). Among the

seven  descriptions  is  sexual  intercourse  against  the  will  or  without  the

consent of the woman; clause ‘Sixthly’ of Section 375 makes it clear that if

the woman is under 18 years of age, then sexual intercourse with her - with

or without her consent - is rape. This is commonly referred to as ‘statutory

rape’ in which the willingness or consent of a woman below the age of 18

years  for  having  sexual  intercourse  is  rendered  irrelevant  and

inconsequential.

29. However, Exception 2 to Section 375 of the IPC provides that it is not

rape if a man has sexual intercourse with a girl above 15 years of age and if

that girl is his wife. In other words, a husband can have sexual intercourse

with his wife provided she is not below 15 years of age and this is not rape

under the IPC regardless of her willingness or her consent.

30. However, sexual intercourse with a girl under 15 years of age is rape,

whether it is with or without her consent, against her will or not, whether it

is by her husband or anybody else. This is clear from a reading of Section

375 of the IPC including Exception 2.

31. Therefore, Section 375 of the IPC provides for three circumstances

relating to ‘rape’.  Firstly sexual intercourse with a girl below 18 years of

             W.P. (C) No. 382 of 2013 Page 20

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).

32. The result of the above three situations is that the husband of a girl

child between 15 and 18 years of age 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.  Very

strangely, and as pointed out by Sakshi before the LCI, the husband of a girl

child does not have the liberty and freedom under the IPC to commit a lesser

‘sexual’ act  with his wife,  as  for  example,  if  the husband of a girl  child

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 years of age but not to molest her. This

view is  surprisingly  endorsed  by the  LCI  in  its  172nd report  adverted  to

             W.P. (C) No. 382 of 2013 Page 21

above.

Protection of Human Rights Act, 1993

33. The Protection of Human Rights Act, 1993 defines “human rights” in

Section  2(d)  as  meaning  the  rights  relating  to  life,  liberty,  equality  and

dignity  of  the  individual  guaranteed  by  the  Constitution  or  embodied  in

international covenants and enforceable by courts in India. There can be no

doubt that if a girl child is forced by her husband into sexual intercourse

against her will or without her consent, it would amount to a violation of her

human right to liberty or her dignity guaranteed by the Constitution or at

least embodied in international conventions accepted by India such as the

Convention on the Rights of the Child (the CRC) and the Convention on the

Elimination of All Forms of Discrimination Against Women (the CEDAW).

Protection of Women from Domestic Violence Act, 2005 (DV Act)

34. Section 3 of the Protection of Women from Domestic Violence Act,

2005 (for short ‘the DV Act’) provides that if the husband of a girl child

harms or injures or endangers the health, safety, life,  limb or well being,

whether mental or physical, of his wife including by causing physical abuse

and  sexual  abuse,  he  would  be  liable  to  have  a  protection  order  issued

against him and pay compensation to his wife.  Explanation I (ii) of Section

             W.P. (C) No. 382 of 2013 Page 22

3 defines ‘sexual abuse’ as including any conduct of a sexual nature that

abuses, humiliates, degrades or otherwise violates the dignity of a woman.  

Prohibition of Child Marriage Act, 2006 (PCMA)

35. One of the more important legislations on the subject of protective

rights of children is the Prohibition of Child Marriage Act, 2006 (for short

‘the PCMA’). For the purposes of the PCMA, a ‘child’ is a male who has not

completed 21 years of age and a female who has not completed 18 years of

age and a ‘child marriage’ means a  marriage to  which either  contracting

party is a child.  

36. Section 3 of the PCMA provides that a child marriage is voidable at

the option of any one of the parties to the child marriage – a child marriage

is not void, but only voidable. Interestingly, and notwithstanding the fact that

a child marriage is only voidable, Parliament has made a child marriage an

offence and has provided punishments for contracting a child marriage. For

instance,  Section 9 of  the PCMA provides that  any male adult  above 18

years  of  age  marrying  a  child  shall  be  punishable  with  rigorous

imprisonment which may extend to two years or with fine which may extend

to one lakh rupees or with both. Therefore regardless of his age, a male is

penalized under this  section if  he marries  a  girl  child.  Section 10 of  the

PCMA provides that whoever performs, conducts, directs or abets any child

             W.P. (C) No. 382 of 2013 Page 23

marriage shall be punishable with rigorous imprisonment which may extend

to two years and shall be liable to fine which may extend to one lakh rupees;

Section 11 of the PCMA provides punishment for promoting or permitting

solemnization  of  a  child  marriage;  and  finally  Section  13 of  the  PCMA

provides that the jurisdictional judicial officer may injunct the performance

of a child marriage while Section 14 of the PCMA provides that any child

marriage solemnized in violation of an injunction under Section 13 shall be

void.    

37. It is quite clear from the above that Parliament is not in favour of child

marriages per se but is somewhat ambivalent about it. However, Parliament

recognizes that although a child marriage is a criminal activity, 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, while

prohibiting a child marriage and criminalizing it, a child marriage has not

been  declared  void  and what  is  worse,  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.     

Protection of Children from Sexual Offences Act, 2012 (POCSO)

38. The Protection of Children from Sexual Offences Act, 2012 (for short

‘the POCSO Act’) is an important statute for the purposes of our discussion.

             W.P. (C) No. 382 of 2013 Page 24

The Statement of Objects and Reasons necessitating the enactment of the

POCSO Act  makes  a  reference  to  data  collected  by  the  National  Crime

Records  Bureau  (NCRB) which  indicated  an  increase  in  sexual  offences

against children.  The data collected by the NCRB was corroborated by the

Study on Child Abuse: India 2007 conducted by the Ministry of Women

and Child Development of the Government of India.

39. While the above Study focuses on child abuse,  it  does refer to the

harmful traditional practice of child marriage and in this context adverts to

child marriage as being a subtle form of violence against children. The Study

notes  that  there  is  a  realization  that  if  issues  of  child  marriage  are  not

addressed, it would affect the overall progress of the country.

40. The  above  Study  draws  attention  to  the  Convention  on  the

Elimination of All Forms of Discrimination Against Women (CEDAW)

to which India is a signatory. Article 16.2 thereof provides “The betrothal

and the marriage of  a child  shall  have no legal  effect,  and all  necessary

action, including legislation, shall be taken to specify a minimum age for

             W.P. (C) No. 382 of 2013 Page 25

marriage and to make the registration of  marriages in an official  registry

compulsory.” 5   

41. The above Study also makes a reference to gender equity to the effect

that  discrimination  against  girls  results  in  child  marriages  and  such  an

imbalance needs to be addressed by bringing about attitudinal changes in

people regarding the value of the girl child.

42. The  Preamble  to  the  POCSO  Act  states  that  it  was  enacted  with

reference to Article 15(3) of the Constitution. The Preamble recognizes that

the best interest of a child should be secured, a child being defined under

Section 2(d) as any person below the age of 18 years. In fact, securing the

best interest of the child is an obligation cast upon the Government of India

having acceded to the Convention on the Rights of the Child (the CRC).

The Preamble to the POCSO Act also recognizes that it is imperative that the

law should operate “in a manner that the best interest and well being of the

child  are  regarded  as  being  of  paramount  importance  at  every  stage,  to

ensure the healthy, physical, emotional, intellectual and social development

5 India became a signatory to the CEDAW Convention on 30th July, 1980 (ratified on 9th July, 1993) but with a reservation to the extent of making registration of marriage compulsory stating that it is not practical in a vast country like India with its variety of customs, religions and  level  of  literacy.  Nevertheless,  the  Supreme  Court  in  the  case  of  Seema (Smt.)  v. Ashwani Kumar, (2006) 2 SCC 578 directed the States and Central Government to notify Rules  making  registration  of  marriages  compulsory.  However,  the  same  has  not  been implemented in full.

             W.P. (C) No. 382 of 2013 Page 26

of the child”. Finally, the Preamble also provides that “sexual exploitation

and sexual abuse of children are heinous crimes and need to be effectively

addressed”. This is directly in conflict with Exception 2 to Section 375 of

the IPC which effectively provides that  the sexual  exploitation or  sexual

abuse of a girl child is not even a crime, let alone a heinous crime – on the

contrary, it  is  a  perfectly  legitimate  activity  if  the  sexual  exploitation  or

sexual abuse of the girl child is by her husband.

43. Under Article 34 of the CRC, the Government of India is bound to

“undertake all appropriate national,  bilateral and multi-lateral measures to

prevent the coercion of a child to engage in any unlawful sexual activity”.

The key words are ‘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 is unlawful and a

punishable offence. This dichotomy is certainly not in the spirit of Article 34

of the CRC.  

44. Further, in terms of our international obligations under Article 1 and

Article  34  of  the  CRC,  the  Government  of  India  must  undertake  all

appropriate measures to prevent the sexual exploitation or sexual abuse of

             W.P. (C) No. 382 of 2013 Page 27

any person below 18 years of age since such sexual exploitation or sexual

abuse is a heinous crime. What has the Government of India done? It has

persuaded Parliament to convert what is otherwise universally accepted as a

heinous crime into a legitimate activity for the purposes of Section 375 of

the  IPC if  the  exploiter  or  abuser  is  the  husband  of  the  girl  child.  But,

contrarily the rape of  a married girl  child (called ‘aggravated penetrative

sexual assault’ in the POCSO Act) is made an offence for the purposes of the

POCSO Act.  

45. Section  3  of  the  POCSO Act  defines  “penetrative  sexual  assault”.

Clause (n) of Section 5 provides that if a person commits penetrative sexual

assault  with  a  child,  then  that  person  actually  commits  aggravated

penetrative sexual assault  if  that person is related to the child,  inter alia,

through  marriage.   Therefore,  if  the  husband  of  a  girl  child  commits

penetrative  sexual  assault  on  his  wife,  he  actually  commits  aggravated

penetrative  sexual  assault  as  defined in  Section  5(n)  of  the  POCSO Act

which is punishable under Section 6 of the POCSO Act by a term of rigorous

imprisonment  of  not  less  than  ten  years  and  which  may  extend  to

imprisonment for life and fine.  

46. The duality therefore is that having sexual intercourse with a girl child

between 15 and 18 years of age, the husband of the girl child is said to have

             W.P. (C) No. 382 of 2013 Page 28

not committed rape as defined in Section 375 of the IPC but is said to have

committed aggravated penetrative sexual assault in terms of Section 5(n) of

the POCSO Act.

47. There is no real or material difference between the definition of rape

in the terms of Section 375 of the IPC and penetrative sexual assault in the

terms  of  Section  3  of  the  POCSO Act.6 The  only  difference  is  that  the

definition of rape is somewhat more elaborate and has two exceptions but

the sum and substance of the two definitions is more or less the same and the

punishment  (under  Section  376(1)  of  the  IPC)  for  being found guilty  of

committing the offence of rape is the same as for penetrative sexual assault

(under  Section  4  of  the  POCSO  Act).   Similarly,  the  punishment  for

6 3. Penetrative sexual assault.—A person is said to commit “penetrative sexual assault” if—

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person…….

375. Rape.—A man is said to commit “rape” if he— (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a

woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the

vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

             W.P. (C) No. 382 of 2013 Page 29

‘aggravated’  rape  under  Section  376(2)  of  the  IPC  is  the  same  as  for

aggravated penetrative sexual assault under Section 6 of the POCSO Act.

Consequently,  it  is  immaterial  if  a  person  is  guilty  of  the  same  sexual

activity under the provisions of the POCSO Act or the provisions of the IPC

– the  end  result  is  the  same and only  the  forum of  trial  changes.   In  a

violation of the provisions of the POCSO Act, a Special Court constituted

under Section 28 of the said Act would be the Trial Court but the ordinary

criminal court would be the Trial Court for an offence under the IPC.

48. At this stage it is necessary to refer to Section 42-A inserted in the

POCSO Act by an amendment made on 3rd February, 2013. This section

reads:

42-A. Act not in derogation of any other law.—The provisions of this  Act  shall  be  in  addition  to  and  not  in  derogation  of  the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect  on  the  provisions  of  any  such  law  to  the  extent  of  the inconsistency.

The consequence of this amendment is that the provisions of the POCSO Act

will  override  the  provisions  of  any other  law (including the  IPC)  to  the

extent of any inconsistency.   

49. One of the questions that arises for our consideration is whether there

is  any  incongruity  between  Exception  2  to  Section  375  of  the  IPC and

             W.P. (C) No. 382 of 2013 Page 30

Section 5(n) of the POCSO Act and which provision overrides the other. To

decide this, it would be necessary to keep Section 42-A of the POCSO Act in

mind as well as Sections 5 and 41 of the IPC which read:

5. Certain laws not to be affected by this Act.—Nothing in this Act shall affect the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen in the service of the Government of India or the provisions of any special or local law.

41. “Special law”.—A “special law” is a law applicable to a particular subject.

50. These two provisions are of considerable importance in resolving the

controversy and conflict presented before us.

Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act)

51. The Juvenile Justice (Care and Protection of Children) Act, 2015 (the

JJ Act) is also relatable to Article 15(3) of the Constitution. Section 2(12) of

the JJ Act defines a child as a person who has not completed 18 years of age.

A child in need of care and protection is defined in Section 2(14) of the JJ

Act,  inter  alia,  as  a  child  “who is  at  imminent  risk  of  marriage  before

attaining the age of marriage and whose parents, family members, guardian

and any other persons are likely to be responsible for solemnization of such

marriage”. Clearly a girl child below 18 years of age and who is sought to be

married is a child in need of care and protection. She is therefore, required to

be produced before a Child Welfare Committee constituted under Section 27

             W.P. (C) No. 382 of 2013 Page 31

of the JJ  Act so that  she could be cared for, protected and appropriately

rehabilitated or restored to society.

Brief summary of the existing legislations

52. It is obvious from a brief survey of the various statutes referred to

above that a child is a person below 18 years of age who is entitled to the

protection of her human rights including the right to live with dignity; if she

is  unfortunately  married  while  a  child,  she  is  protected  from  domestic

violence,  both physical  and mental,  as  well  as  from physical  and sexual

abuse;  if  she  is  unfortunately  married  while  a  child,  her  marriage  is  in

violation of the law and therefore an offence and such a marriage is voidable

at  her  instance  and  the  person  marrying her  is  committing  a  punishable

offence;  the  husband  of  the  girl  child  would  be  committing aggravated

penetrative sexual assault when he has sexual intercourse with her and is

thereby committing a punishable offence under the POCSO Act. The only

jarring note in this scheme of the pro-child legislations is to be found in

Exception 2 to Section 375 of the IPC which provides that sexual intercourse

with a girl child between 15 and 18 years of age is not rape if the sexual

intercourse  is  between  the  girl  child  and  her  husband.  Therefore,  the

question of punishing the husband simply does not arise. A girl child placed

in such circumstances is a child in need of care and protection and needs to

             W.P. (C) No. 382 of 2013 Page 32

be cared for, protected and appropriately rehabilitated or restored to society.

All these ‘child-friendly statutes’ are essential for the well-being of the girl

child  (whether  married or  not)  and are  protected by Article  15(3)  of  the

Constitution.   These  child-friendly  statutes  also  link  child  marriages  and

sexual  intercourse  with  a  girl  child  and  draw  attention  to  the  adverse

consequences of both.  

Article 15(3) of the Constitution

53. Article 15(3) of the Constitution enables and empowers the State to

make  special  provision  for  the  benefit  of  women  and  children.  The

Constituent Assembly debated this provision [then Article 9(2) of the draft

Constitution]  on  29th November,  1948.  Prof.  K.T.  Shah  suggested  an

amendment  to  the  said Article  (“Nothing in  this  article  shall  prevent  the

State from making any special provision for women and children”) so that it

would read: “Nothing in this article shall prevent the State from making any

special  provision  for  women  and  children  or  for  Scheduled  Castes  or

backward tribes,  for  their  advantage,  safeguard or  betterment.”  The view

expressed was:

“Sir, it must be distinguished from the preceding article. I read it, at any  rate,  that  this  is  a  provision  for  discrimination  in  favour  of women and children, to which I have added the Scheduled Castes or backward tribes. This discrimination is in favour of particular classes of our society which, owing to an unfortunate legacy of the past,

             W.P. (C) No. 382 of 2013 Page 33

suffer  from disabilities  or  handicaps.  Those,  I  think,  may require special treatment; and if they do require it, they should be permitted special facilities for some time so that real equality of citizens be established. The rage for equality which has led to provide equal citizenship and equal rights for women has sometimes found exception in regard to special  provisions  that,  in  the  long  range,  in  the  interest  of  the country  or  of  the  race,  exclude  women  from  certain  dangerous occupations, certain types of work. That, I take it, is not intended in any way to diminish their civic equality or status as citizens. It is only  intended to safeguard,  protect  or  lead  to  their  betterment  in general;  so  that  the  long-range  interests  of  the  country  may  not suffer.”

The amendment was negatived by Dr. Ambedkar in the following manner:

“With regard to amendment No. 323 moved by Professor K.T. Shah, the object of which is to add “Scheduled Castes” and “Scheduled Tribes” along with women and children, I am afraid it may have just the opposite effect.  

The object which all of us have in mind is that the Scheduled Castes and Scheduled  Tribes  should  not  be  segregated  from the  general public.  

For instance, none of us, I think, would like that a separate school should  be  established  for  the  Scheduled  Castes  when  there  is  a general  school  in  the  village  open  to  the  children  of  the  entire community. If these words are added, it will probably give a handle for a State to say, ‘Well, we are making special provision for the Scheduled Castes’.  To my mind they can safely say so by taking shelter under the article if it is amended in the manner the Professor wants it. I therefore think that it is not a desirable amendment.”

The response given by Dr. Ambedkar suggests that  he certainly favoured

special provisions for women and children with a view to integrate them into

             W.P. (C) No. 382 of 2013 Page 34

society and to take them out of patriarchal control. But a similar integration

could not be achieved by making special provisions for Scheduled Castes

and  Scheduled  Tribes  –  it  would  have  the  opposite  effect  and  further

segregate them from the general public.  

54. What clearly emerges from this discussion is that Article 9(2) of the

draft Constitution [now Article 15(3)] was intended to discriminate in favour

of women and children – a form of affirmative action to their advantage.

This intention has been recognized by decisions of this Court and of some

High Courts. The earliest such decision is of the Calcutta High Court in Sri

Mahadeb Jiew v. Dr. B.B.  Sen7 in  which it  was said  that:  “The special

provision for women in Article 15(3) cannot be construed as authorizing a

discrimination against women, and the word “for” in the context means “in

favour of”.”   

55. In Government of  A.P. v. P.B. Vijayakumar8 affirmative action for

women (and children) was recognized in paragraphs 7 and 8 of the Report in

the following words:

“The insertion of clause (3) of Article 15 in relation to women is a recognition of the fact that for centuries, women of this country have

7 AIR 1951 Cal 563

8 (1995) 4 SCC 520

             W.P. (C) No. 382 of 2013 Page 35

been socially and economically handicapped. As a result, they are unable to participate in the socio-economic activities of the nation on a footing of equality. It is in order to eliminate this socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and women that  Article  15(3)  is  placed  in  Article  15.  Its  object  is  to strengthen and improve the status of women…… What then is meant by “any special provision for women” in Article 15(3)?  This  “special  provision”,  which  the  State  may  make  to improve women’s participation in all activities under the supervision and control of the State  can be in the form of either affirmative action or reservation.” .…(Emphasis supplied by us)

56. Yusuf  Abdul  Aziz  v.  State  of  Bombay9 is  a  Constitution  Bench

decision of this Court in which the constitutional validity of Section 497 of

the IPC was challenged on the ground that it unreasonably ‘exempts’ a wife

from being punishable for an offence of adultery and therefore should be

interpreted restrictively. Rejecting the contention that Article 15(3) of the

Constitution places any restriction on the legislative power of Parliament, it

was said:

“It  was argued that  clause  (3)  [of  Article  15 of  the  Constitution] should be confined to provisions which are beneficial to women and cannot be used to give them a licence to commit and abet crimes. We are unable to read any such restriction into the clause; nor are we able  to  agree  that  a  provision  which  prohibits  punishment  is tantamount to a licence to commit the offence of which punishment has been prohibited.”

57. The view that  Article  15(3) is intended to benefit  women has also

9 1954 SCR 930

             W.P. (C) No. 382 of 2013 Page 36

been accepted in  Cyril Britto v. Union of India10 wherein it was held that

prohibition  from arrest  or  detention  of  women in  execution  of  a  money

decree under Section 56 of the Civil Procedure Code is a special provision

calculated  to  ensure  that  a  woman  judgment-debtor  is  not  put  to  the

ignominy or arrest  and detention in civil  prison in execution of a money

decree  and  that  this  provision  is  referable  to  Article  15(3)  of  the

Constitution. A similar view was taken in respect of the same provision in

the  Civil  Procedure  Code  in  Shrikrishna  Eknath  Godbole  v.  Union  of

India.11  

58. It is quite clear therefore that Article 15(3) of the Constitution cannot

and ought not to be interpreted restrictively but must be given its full play.

Viewed from this perspective,  it  seems to us that legislation intended for

affirmative  action  in  respect  of  a  girl  child  must  not  only  be  liberally

construed and interpreted but must override any other legislation that seeks

to  restrict  the  benefit  made  available  to  a  girl  child.  This  would  only

emphasize the spirit of Article 15(3) of the Constitution.

Right to bodily integrity and reproductive choice

10 AIR 2003 Ker 259

11 PIL No. 166/2016 decided on 21st October, 2016

             W.P. (C) No. 382 of 2013 Page 37

59. The  right  to  bodily  integrity  and  the  reproductive  choice  of  any

woman has been the subject of discussion in quite a few decisions of this

Court.  The discussion has  been wide-ranging and several  facets  of  these

concepts  have  been  considered  from  time  to  time.  The  right  to  bodily

integrity  was  initially  recognized  in  the  context  of  privacy  in State  of

Maharashtra v. Madhukar Narayan Mardikar12 wherein it was observed

that no one has any right to violate the person of anyone else, including of an

‘unchaste’ woman. It was said:

“The High Court observes that since Banubi is an unchaste woman it would  be  extremely  unsafe  to  allow  the  fortune  and  career  of  a government official to be put in jeopardy upon the uncorroborated version of such a woman who makes no secret of her illicit intimacy with another person. She was honest enough to admit the dark side of her life. Even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. So also it is not open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate it against her wish. She is equally entitled to the protection of law.” (Emphasis supplied by us)

60. In Suchita Srivastava v. Chandigarh Administration13 the right  to

make a reproductive choice was equated with personal liberty under Article

21 of the Constitution, privacy, dignity and bodily integrity. It includes the

right to abstain from procreating. In paragraph 22 of the Report it was held:

12 (1991) 1 SCC 57

13 (2009) 9 SCC 1

             W.P. (C) No. 382 of 2013 Page 38

“There  is  no  doubt  that  a  woman’s  right  to  make  reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected.  This  means  that  there  should  be  no  restriction whatsoever  on  the  exercise  of  reproductive  choices  such  as  a woman’s  right  to  refuse  participation  in  sexual  activity  or alternatively  the  insistence  on  use  of  contraceptive  methods. Furthermore, women are also free to choose birth control methods such as undergoing sterilisation procedures.  Taken to their  logical conclusion,  reproductive  rights  include  a  woman’s entitlement  to carry a pregnancy to its full term, to give birth and to subsequently raise children. However, in the case of pregnant women there is also a “compelling State interest” in protecting the life of the prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions  specified in  the  applicable statute  have been fulfilled. Hence, the provisions of the MTP Act, 1971 can also be viewed  as  reasonable  restrictions  that  have  been  placed  on  the exercise of reproductive choices.” (Emphasis supplied by us)

61. In issues of criminal law, investigations and recording of statements,

the bodily integrity of a witness has been accepted by this Court in Selvi v.

State of Karnataka14wherein it was held in paragraph 103 of the Report:

“The concerns about the “voluntariness” of statements allow a more comprehensive account of this right. If involuntary statements were readily given weightage during trial, the investigators would have a strong incentive to compel such statements—often through methods involving coercion, threats, inducement or deception. Even if such involuntary statements are proved to be true,  the law should not incentivise the use of interrogation tactics that violate the dignity and bodily integrity of the person being examined.” (Emphasis supplied by us)

14 (2010) 7 SCC 263

             W.P. (C) No. 382 of 2013 Page 39

62. Ritesh Sinha v. State of Uttar Pradesh15 was a case relating to the

collection of a voice sample during the course of investigation by the police.

Relying of Selvi it was held that: “In a country governed by the rule of law,

police actions which are likely to affect the bodily integrity of a person or

likely to affect his personal dignity must have legal sanction.”

63. Finally, in  Devika Biswas v. Union of India16 it was observed that

“Over time, there has been recognition of the need to respect and protect the

reproductive rights and reproductive health of a person.” This is all the more

so in the case of a girl child who has little or no say in reproduction after an

early marriage. As observed in Suchita Srivastava “…. the “best interests”

test requires the Court to ascertain the course of action which would serve

the best interests of the person in question.”

64. The  discussion  on  the  bodily  integrity  of  a  girl  child  and  the

reproductive choices available to her is important only to highlight that she

cannot be treated as a commodity having no say over her body or someone

who has no right  to deny sexual  intercourse to her  husband.  The human

rights of a girl child are very much alive and kicking whether she is married

or not and deserve recognition and acceptance.

15 (2013) 2 SCC 357

16 (2016) 10 SCC 726

             W.P. (C) No. 382 of 2013 Page 40

Rape or penetrative sexual assault

65. Whether sexual intercourse that a husband has with his wife who is

between 15 and 18 years of age is described as rape (not an offence under

Exception 2 to Section 375 of  the IPC) or  aggravated penetrative sexual

assault (an offence under Section 5(n) of the POCSO Act and punishable

under  Section  6  of  the  POCSO  Act)  the  fact  is  that  it  is  rape  as

conventionally understood, though Parliament in its wisdom has chosen to

not recognize it as rape for the purposes of the IPC. That it is a heinous

crime which also violates the bodily integrity of a girl child, causes trauma

and sometimes destroys her freedom of reproductive choice is a composite

issue that needs serious consideration and deliberation.

66. There have been several decisions rendered by this Court highlighting

the horrors of rape. In State of Karnataka v Krishnappa17 an 8 year girl was

raped and it was held in paragraph 15 of the Report:

“Sexual violence apart from being a dehumanising act is an unlawful intrusion of  the  right  to  privacy and sanctity  of  a  female.  It  is  a serious blow to her supreme honour and offends her self-esteem and dignity -  it  degrades and humiliates  the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience.”  (Emphasis supplied by us)

17 (2000)  4 SCC 75

             W.P. (C) No. 382 of 2013 Page 41

67. In Bodhisattwa Gautam v. Subhra Chakraborty18 it was observed by

this Court that rape is a crime not only against a woman but against society.

It was held in paragraph 10 of the Report that:  

“Rape  is  thus  not  only  a  crime  against  the  person  of  a  woman (victim),  it  is  a  crime  against  the  entire  society.  It  destroys  the entire  psychology  of  a  woman  and  pushes  her  into  deep emotional  crisis. It  is  only  by  her  sheer  will-power  that  she rehabilitates herself in the society which, on coming to know of the rape,  looks  down  upon  her  in  derision  and  contempt.  Rape  is, therefore, the most hated crime. It is a crime against basic human rights  and is  also  violative  of  the  victim’s most  cherished of  the Fundamental Rights, namely, the Right to Life contained in Article 21. To many feminists and psychiatrists, rape is less a sexual offence than  an  act  of  aggression  aimed  at  degrading  and  humiliating women. The rape laws do not, unfortunately, take care of the social aspect  of  the  matter  and are  inept  in  many respects.” (Emphasis supplied by us)

68. About a month later, it was pithily stated in State of Punjab v. Gurmit

Singh19

“We must  remember  that  a  rapist  not  only  violates  the  victim’s privacy  and  personal  integrity,  but  inevitably  causes  serious psychological as well as physical harm in the process. Rape is not merely  a  physical  assault  — it  is  often  destructive  of  the  whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female.” (Emphasis supplied by us)  

69. There are several decisions in which similar observations have been

made by this Court and it is not necessary to multiply the cases. However,

18 (1996) 1 SCC 490

19 (1996) 2 SCC 384

             W.P. (C) No. 382 of 2013 Page 42

reference may be made to a fairly recent decision in  State of Haryana v.

Janak Singh20 wherein reference was made to Bodhisattwa Gautam and it

was observed in paragraph 7 of the Report:

“Rape  is  one  of  the  most  heinous  crimes  committed  against  a woman. It  insults womanhood. It  violates the dignity of a woman and erodes her honour. It dwarfs her personality and reduces her confidence level. It violates her right to life guaranteed under Article 21 of the Constitution of India.” (Emphasis supplied by us)

70. If such is the traumatic impact that rape could and does have on an

adult victim, we can only guess what impact it could have on a girl child –

and yet it is not a criminal offence in the terms of Exception 2 to Section 375

of the IPC but is an offence under the POCSO Act only. An anomalous state

of affairs exists on a combined reading of the IPC and the POCSO Act. An

unmarried girl below 18 years of age could be a victim of rape under the IPC

and a victim of penetrative sexual  assault  under the POCSO Act. Such a

victim might have the solace (if we may say so) of prosecuting the rapist. A

married girl between 15 and 18 years of age could be a victim of aggravated

penetrative sexual assault under the POCSO Act, but she cannot be a victim

of rape under the IPC if the rapist is her husband since the IPC does not

recognize such penetrative sexual assault as rape. Therefore such a girl child

has no recourse to law under the provisions of the IPC notwithstanding that

20 (2013) 9 SCC 431

             W.P. (C) No. 382 of 2013 Page 43

the  marital  rape  could  degrade  and  humiliate  her,  destroy  her  entire

psychology pushing her into a deep emotional crisis and dwarf and destroy

her whole personality and degrade her very soul. However, such a victim

could prosecute the rapist under the POCSO Act. We see no rationale for

such an artificial distinction.  

71. While we are not concerned with the general question of marital rape

of an adult woman but only with marital rape of a girl child between 15 and

18 years of age in the context of Exception 2 to Section 375 of the IPC, it is

worth noting the view expressed by 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 out-dated notion that a wife is no

more than a subservient chattel of her husband 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.” The relevant

paragraphs of the Report read as follows:

“72.  The exemption for marital  rape stems from a long out-dated notion  of  marriage  which  regarded  wives  as  no  more  than  the property  of  their  husbands.  According  to  the  common  law  of coverture, a wife was deemed to have consented at the time of the marriage  to  have  intercourse  with  her  husband  at  his  whim. Moreover, this consent could not be revoked. As far back as 1736, Sir Matthew Hale declared: ‘The husband cannot be guilty of rape committed  by  himself  upon  his  lawful  wife,  for  by  their  mutual

             W.P. (C) No. 382 of 2013 Page 44

matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract’. 73.  This  immunity  has  now  been  withdrawn  in  most  major jurisdictions. In England and Wales, the House of Lords held in 1991 that the status of married women had changed beyond all recognition since Hale  set  out  his  proposition.  Most  importantly, Lord  Keith, speaking  for  the  Court,  declared,  ‘marriage  is  in  modern  times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband.’  74.  Our  view  is  supported  by  the  judgment  of  the  European Commission  of  Human  Rights  in  C.R.  v  UK [C.R.  v  UK  Publ. ECHR,  Ser.A,  No.  335-C]  which  endorsed  the  conclusion  that  a rapist  remains a rapist  regardless of his  relationship with the victim. Importantly, it acknowledged that this change in the common law  was  in  accordance  with  the  fundamental  objectives  of  the Convention on Human Rights, the very essence of which is respect for  human rights,  dignity  and  freedom.  This  was  given  statutory recognition  in  the  Criminal  Justice  and  Public  Order  Act  1994.” (Emphasis supplied by us)

72. In  Eisenstadt  v.  Baird21 the  US  Supreme  Court  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.”

73. On a combined reading of  C.R. v. UK and  Eisenstadt v. Baird it is

quite clear 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

21 405 US 438, 31 L Ed 2d 349, 92 S Ct 1092

             W.P. (C) No. 382 of 2013 Page 45

penetrative sexual assault. A rape that actually occurs cannot legislatively be

simply wished away or legislatively denied as non-existent.  

Harmonizing the IPC, the POCSO Act, the JJ Act and the PCMA

74. There is an apparent conflict or incongruity between the provisions of

the IPC and the POCSO Act. The rape of a married girl child (a girl child

between 15 and 18 years of age) is not rape under the IPC and therefore not

an offence in view of Exception 2 to Section 375 thereof but it is an offence

of  aggravated penetrative sexual assault under Section 5(n) of the POCSO

Act and punishable under Section 6 of that Act. This conflict or incongruity

needs to be resolved in the best interest of the girl child and the provisions of

various complementary statutes need to be harmonized and read purposively

to present an articulate whole.   

75. The most obvious and appropriate resolution of the conflict has been

provided  by  the  State  of  Karnataka  –  the  State  Legislature  has  inserted

sub-Section (1A) in Section 3 of the PCMA (on obtaining the assent of the

President on 20th April, 2017) 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

             W.P. (C) No. 382 of 2013 Page 46

same or shared household for rape under the IPC. The relevant extract of the

Karnataka amendment reads as follows:

“(1A)  Notwithstanding  anything  contained  in  sub-section  (1)  [of Section of the PCMA] every child marriage solemnized on or after the date of coming into force of the Prohibition of Child Marriage (Karnataka Amendment) Act, 2016 shall be void ab initio”.

76. It would be wise for all the State Legislatures to adopt the route taken

by  Karnataka  to  void  child  marriages  and  thereby  ensure  that  sexual

intercourse between a girl  child and her husband is a punishable offence

under the POCSO Act and the IPC.  Assuming all other State Legislatures do

not take the Karnataka route, what is the correct position in law?  

77. 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

             W.P. (C) No. 382 of 2013 Page 47

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 creates 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.

78. What is sought to be achieved by this artificial distinction is not at all

clear except perhaps to acknowledge that child marriages are taking place in

the country. Such child marriages certainly cannot be in the best interest of

the  girl  child.  That  the  solemnization  of  a  child  marriage  violates  the

             W.P. (C) No. 382 of 2013 Page 48

provisions  of  the  PCMA is  well-known.  Therefore,  it  is  for  the  State  to

effectively implement and enforce the law rather than dilute it by creating

artificial distinctions. Can it not be said, in a sense, that through the artificial

distinction, Exception 2 to Section 375 of the IPC encourages violation of

the PCMA? Perhaps ‘yes’ and looked at from another point of view, perhaps

‘no’ for it cannot reasonably be argued that one statute (the IPC) condones

an offence under another statute (the PCMA). Therefore the basic question

remains - what exactly is the artificial distinction intended to achieve?

Justification given by the Union of India  

79. The only justification for this artificial distinction has been culled out

by  learned  counsel  for  the  petitioner  from the  counter  affidavit  filed  by

Union of India.  This is given in the written submissions filed by learned

counsel  for  the  petitioner  and  the  justification  (not  verbatim)  reads  as

follows:

i) Economic and educational development in the country is still uneven and child  marriages  are  still  taking  place.  It  has  been,  therefore, decided to retain the age of 15 years under Exception 2 of Section 375 of  IPC so as to give protection to husband and wife against criminalizing the sexual activity between them.

ii) As per National Family Health Survey-III, 46% of women between the ages 18-29 years in India were married before the age of 18. It is also estimated that there are 23 million child brides in the country. Hence, criminalizing the consummation of a marriage union with a serious offence such as rape would not be appropriate and practical.

             W.P. (C) No. 382 of 2013 Page 49

iii) Providing  punishment  for  child  marriage  with  consent  does  not appear to be appropriate in view of socio-economic conditions of the country. Thus, the age prescribed in Exception 2 of Section 375 of IPC has been retained considering the basic facts of the still evolving social norms and issues.

iv) The Law Commission also recommended for raising the age from 15 years  to  16  years  and  it  was  incorporated  in  the  Criminal  Law (Amendment)  Ordinance,  2013.  However,  after  wide  ranging consultations  with  various  stakeholders  it  was  further  decided  to retain the age at 15 years.

v) Exception 2 of Section 375 of IPC envisages that if the marriage is solemnized at the age of 15 years due to traditions, it should not be a reason to book the husband in the case of offence of rape under the IPC.

vi) It is also necessary that the provisions of law should be in such a manner that it cannot affect a particular class of society. Retaining the age of 15 years in Exception 2 of Section 375 of IPC has been provided considering the social realities of the nation.

80. The  above  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.  

             W.P. (C) No. 382 of 2013 Page 50

81. During  the  course  of  oral  submissions,  three  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. The third justification is that paragraph 5.9.1 of the 167th

report  of  the  Parliamentary  Standing  Committee  of  the  Rajya  Sabha

(presented in March 2013) records that several Members felt  that marital

rape has the potential of destroying the institution of marriage.  

82. 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

             W.P. (C) No. 382 of 2013 Page 51

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.

83. Merely  because  child  marriages  have  been  performed  in  different

parts of the country as a part of a tradition or custom does not necessarily

mean that the tradition is an acceptable one nor should it be sanctified as

such. Times change and what was acceptable the few decades ago may not

necessarily be acceptable today. This was noted by a Constitution Bench of

this Court (though in a different context) in  State of Madhya Pradesh v.

Bhopal Sugar Industries Ltd.22 that:

“But,  by  the  passage  of  time,  considerations  of  necessity  and expediency would be obliterated,  and the  grounds which justified classification  of  geographical  regions  for  historical  reasons  may cease to be valid.”

22 [1964] 6 SCR 846

             W.P. (C) No. 382 of 2013 Page 52

84. Similarly, in Rattan Arya v. State of Tamil Nadu23 it was observed that

judicial notice could be taken of a change in circumstances. It was held:

“It certainly cannot be pretended that the provision is intended to benefit the weaker sections of the people only. We must also observe here that whatever justification there may have been in 1973 when Section  30(ii)  [of  the  Tamil  Nadu  Buildings  (Lease  and  Rent Control) Act, 1960] was amended by imposing a ceiling of Rs 400 on rent payable by tenants of residential buildings to entitle them to seek the protection of the Act,  the passage of time has made the ceiling utterly unreal. We are entitled to take judicial notice of the enormous  multifold  increase  of  rents  throughout  the  country, particularly in urban areas. It is common knowledge today that the accommodation which one could have possibly got for Rs 400 per month in 1973 will  today cost at least five times more.  In these days of universal, day to day escalation of rentals any ceiling such  as  that  imposed  by  Section  30(ii)  in  1973  can  only  be considered to be totally artificial and irrelevant today. As held by this court in Motor General Traders v. State of A.P.24 a provision which was  perfectly  valid  at  the  commencement  of  the  Act  could  be challenged  later  on  the  ground  of  unconstitutionality  and  struck down on that basis. What was once a perfectly valid legislation, may in course of time, become discriminatory and liable to challenge on the ground of its being violative of Article 14.” (Emphasis supplied by us)  

85. In  Anuj  Garg  v.  Hotel  Association  of  India25 this  Court  was

concerned with the constitutional validity of Section 30 of the Punjab Excise

Act, 1914 which prohibited employment of “any man under the age of 25

years” or “any woman” in any part of such premises in which liquor or an

intoxicating drug is consumed by the public. While upholding the view of

23 (1986) 3 SCC 385

24 (1984) 1 SCC 222

25 (2008) 3 SCC 1

             W.P. (C) No. 382 of 2013 Page 53

the Delhi High Court striking down the provision as unconstitutional, this

Court held in paragraphs 46 and 47 of the Report:

“It  is  to  be  borne  in  mind  that  legislations  with  pronounced “protective discrimination” aims, such as this one, potentially serve as  double-edged  swords.  Strict  scrutiny  test  should  be  employed while  assessing  the  implications  of  this  variety  of  legislations. Legislation should not be only assessed on its  proposed aims but rather on the implications and the effects. The impugned legislation suffers  from  incurable  fixations  of  stereotype  morality  and conception  of  sexual  role.  The  perspective  thus  arrived  at  is outmoded in content and stifling in means. No  law  in  its  ultimate  effect  should  end  up  perpetuating  the oppression  of  women.  Personal  freedom  is  a  fundamental  tenet which cannot be compromised in the name of expediency until and unless  there  is  a  compelling  State  purpose.  Heightened  level  of scrutiny is the normative threshold for judicial review in such cases.” (Emphasis supplied by us)  

86. Similarly,  it  was  observed  by  this  Court  in  Satyawati  Sharma  v.

Union of India26 in paragraph 32 of the Report that legislation which might

be reasonable at the time of its enactment could become unreasonable with

the passage of time. It was observed as follows:

“It is trite to say that  legislation which may be quite reasonable and rational at the time of its enactment may with the lapse of time and/or due to change of circumstances become arbitrary, unreasonable and violative of the doctrine of equality and even if the  validity  of  such legislation may have been upheld at  a  given point of time, the Court may, in subsequent litigation, strike down the same if it is found that the rationale of classification has become non-existent.” (Emphasis supplied by us)  

26 (2008) 5 SCC 287

             W.P. (C) No. 382 of 2013 Page 54

There is therefore no doubt that  the impact  and effect  of  Exception 2 to

Section 375 of the IPC has to be considered not with the blinkered vision of

the days gone by but with the social realities of today. Traditions that might

have been acceptable at some historical point of time are not cast in stone. If

times and situations change, so must views, traditions and conventions.  

87. We have adverted to the wealth of documentary material which goes

to show that an early marriage and sexual intercourse at an early age could

have detrimental effects on the girl child not only in terms of her physical

and  mental  health  but  also  in  terms  of  her  nutrition,  her  education,  her

employability  and  her  general  well-being.  To  make  matters  worse,  the

detrimental impact could pass on to the children of the girl child who may be

malnourished and may be required to live in an impoverished state due to a

variety  of  factors.  An  early  marriage  therefore  could  have  an

inter-generational adverse impact.  In effect therefore the practice of early

marriage or child marriage even if sanctified by tradition and custom may

yet  be  an  undesirable  practice  today  with  increasing  awareness  and

knowledge of its detrimental effects and the detrimental effects of an early

pregnancy. Should this traditional practice still continue? We do not think so

and the sooner it is given up, it would be in the best interest of the girl child

and for society as a whole.

             W.P. (C) No. 382 of 2013 Page 55

88. We must  not  and  cannot  forget  the  existence  of  Article  21  of  the

Constitution which gives a fundamental right to a girl child to live a life of

dignity. The documentary material placed before us clearly suggests that an

early marriage takes away the self esteem and confidence of a girl child and

subjects her, in a sense, to sexual abuse. Under no circumstances can it be

said that such a girl child lives a life of dignity. The right of a girl child to

maintain her bodily integrity is effectively destroyed by a traditional practice

sanctified by the IPC. Her husband, for the purposes of Section 375 of the

IPC, effectively has full control over her body and can subject her to sexual

intercourse without her  consent  or  without her  willingness since such an

activity would not be rape. Anomalously, although her husband can rape her

but he cannot molest her for if he does so he could be punished under the

provisions of the IPC. This was recognized by the LCI in its 172nd report but

was not commented upon. It appears therefore that different and irrational

standards have been laid down for  the treatment of  the girl  child by her

husband and it is necessary to harmonize the provisions of various statutes

and also harmonize different provisions of the IPC inter-se.

89. We have also adverted to the issue of reproductive choices that are

severely curtailed as far as a married girl child is concerned. There is every

possibility that being subjected to sexual intercourse, the girl  child might

             W.P. (C) No. 382 of 2013 Page 56

become pregnant and would have to deliver a baby even though her body is

not  quite  ready  for  procreation.  The  documentary  material  shown  to  us

indicates that there are greater chances of a girl child dying during childbirth

and there are greater chances of neonatal deaths. The results adverted to in

the material also suggest that children born out of early marriages are more

likely to be malnourished. In the face of this material, would it be wise to

continue with a practice, traditional though it might be, that puts the life of a

girl child in danger and also puts the life of the baby of a girl child born from

an  early  marriage  at  stake?  Apart  from  constitutional  and  statutory

provisions, constitutional morality forbids us from giving an interpretation to

Exception 2 to Section 375 of the IPC that sanctifies a tradition or custom

that is no longer sustainable.

90. The  view  that  marital  rape  of  a  girl  child  has  the  potential  of

destroying the institution of marriage cannot be accepted. Marriage is not

institutional but personal – nothing can destroy the ‘institution’ of marriage

except a statute that makes marriage illegal and punishable. A divorce may

destroy  a  marriage  but  does  it  have  the  potential  of  destroying  the

‘institution’  of  marriage?  A  judicial  separation  may  dent  a  marital

relationship but does it have the potential of destroying the ‘institution’ of

marriage or even the marriage? Can it  be said that no divorce should be

             W.P. (C) No. 382 of 2013 Page 57

permitted or  that  judicial  separation should be prohibited? The answer is

quite obvious.

91. Looked at from another perspective, the PCMA actually makes child

marriages voidable and makes the parties to a child marriage (other than the

girl child) punishable for an offence under the said Act. For someone who

supports the institution of marriage, nothing could be more destructive of the

institution  of  marriage  than  the  PCMA  which  makes  a  child  marriage

voidable  and punishable  on the  one  hand and on the  other,  it  otherwise

collaterally  legitimizes  the  pernicious  practice  of  child  marriages.  It  is

doubtful if the Parliamentary Standing Committee intended such a situation

along with its attendant adverse and detrimental impacts and so we leave it

at that.

92. Assuming some objective is sought to be achieved by the artificial

distinction,  the  further  question  is:  what  is  the  rational  nexus  between

decriminalizing sexual intercourse under the IPC with a married girl child

and an unclear  and uncertain statutory objective? There is  no intelligible

answer to this question particularly since sexual intercourse with a married

girl child is a criminal offence of aggravated penetrative sexual assault under

the POCSO Act. Therefore, while the husband of a married girl child might

not  have  committed  rape  for  the  purposes  of  the  IPC  but  he  would

             W.P. (C) No. 382 of 2013 Page 58

nevertheless have committed aggravated penetrative sexual assault  for the

purposes  of  the  POCSO  Act.  The  punishment  for  rape  (assuming  it  is

committed) and the punishment for penetrative sexual assault is the same,

namely imprisonment for a minimum period of 7 years which may extend to

imprisonment  for  life.  Similarly,  for  an  ‘aggravated’  form  of  rape  the

punishment is for a minimum period of 10 years imprisonment which may

extend  to  imprisonment  for  life  (under  the  IPC)  and the  punishment  for

aggravated penetrative sexual assault (which is what is applicable in the case

of a married girl child) is the same (under the POCSO Act). In other words,

the artificial distinction merely takes the husband of the girl child out of the

clutches of the IPC while retaining him within the clutches of the POCSO

Act. We are unable to understand why this is so and no valid justification or

explanation is forthcoming from the Union of India.

Application of special laws

93. Whatever be the explanation, given the context and purpose of their

enactment,  primacy  must  be  given  to  pro-child  statutes  over  the  IPC as

provided for in Sections 5 and 41 of the IPC. There are several reasons for

this  including  the  absence  of  any  rationale  in  creating  an  artificial

distinction, in relation to sexual offences, between a married girl child and

an unmarried girl child. Statutes concerning the rights of children are special

             W.P. (C) No. 382 of 2013 Page 59

laws concerning a special subject of legislation and therefore the provisions

of such subject-specific legislations must prevail and take precedence over

the provisions of a general law such as the IPC. It must also be remembered

that the provisions of the JJ Act as well as the provisions of the POCSO Act

are traceable to Article 15(3) of the Constitution which enables Parliament to

make  special  provisions  for  the  benefit  of  children.  We  have  already

adverted to some decisions relating to the interpretation of Article 15(3) of

the Constitution in a manner that is affirmative, in favour of children and for

children  and we  have  also  adverted  to  the  discussion  in  the  Constituent

Assembly in this regard. There can therefore be no other opinion regarding

the pro-child slant of the JJ Act as well as the POCSO Act.

94. A rather lengthy but useful discussion on this subject of special laws is

to be found in  Life Insurance Corporation of India v. D.J. Bahadur27 in

paragraphs  52  and  53  of  the  Report.  Briefly,  it  was  held  that  the

subject-matter  and the perspective of  the statute  are determinative of  the

question whether a statute is a general law or a special law. Therefore, for

certain purposes a statute might be a special law but for other purposes, as

compared to another statute, it might be a general law. In respect of a dispute

between the Life Insurance Corporation and its workmen qua workmen, the

27 (1981) 1 SCC 315

             W.P. (C) No. 382 of 2013 Page 60

Industrial  Disputes  Act,  1947  would  be  a  special  law  vis-à-vis  the  Life

Insurance  Corporation  Act,  1956;  but,  “when  compensation  on

nationalisation is the question, the LIC Act is the special statute”. It was held

as follows:

“In determining whether a statute is a special or a general one, the focus  must  be  on  the  principal  subject-matter  plus  the  particular perspective.  For certain purposes,  an Act  may be general  and for certain  other  purposes  it  may  be  special  and  we  cannot  blur distinctions when dealing with finer points of law. In law, we have a cosmos of relativity, not absolutes — so too in life. The ID Act is a special  statute  devoted  wholly  to  investigation  and  settlement  of industrial  disputes  which provides  definitionally  for  the  nature  of industrial  disputes  coming  within  its  ambit.  It  creates  an infrastructure  for  investigation  into,  solution  of  and  adjudication upon industrial disputes.  It  also provides the necessary machinery for enforcement of awards and settlements. From alpha to omega the ID  Act  has  one  special  mission  —  the  resolution  of  industrial disputes  through  specialised  agencies  according  to  specialised procedures and with special reference to the weaker categories of employees  coming  within  the  definition  of  workmen.  Therefore, with  reference  to  industrial  disputes  between  employers  and workmen, the ID Act is a special statute, and the LIC Act does not speak at all with specific reference to workmen. On the other hand, its  powers  relate  to  the  general  aspects  of  nationalisation,  of management when private businesses are nationalised and a plurality of  problems  which,  incidentally,  involve  transfer  of  service  of existing  employees  of  insurers.  The  workmen  qua  workmen  and industrial disputes between workmen and the employer as such, are beyond the  orbit  of  and have  no  specific  or  special  place  in  the scheme of the LIC Act. And whenever there was a dispute between workmen and management the ID Act mechanism was resorted to. What  are  we  confronted  with  in  the  present  case,  so  that  I  may determine as between the two enactments which is the special? The only subject which has led to this litigation and which is the bone of contention between the parties is  an industrial dispute between the Corporation  and  its  workmen  qua  workmen.  If  we  refuse  to  be obfuscated by legal abracadabra and see plainly what is so obvious,

             W.P. (C) No. 382 of 2013 Page 61

the conclusion that flows, in the wake of the study I have made, is that  vis-a-vis  “industrial  disputes”  at  the  termination  of  the settlement as between the workmen and the Corporation, the ID Act is  a  special  legislation  and  the  LIC  Act  a  general  legislation. Likewise, when compensation on nationalisation is the question, the LIC Act is the special statute. An application of the generalia maxim as expounded by English textbooks and decisions leaves us in no doubt that the ID Act being special law, prevails over the LIC Act which is but general law.”

The scope and amplitude of the two significant pro-child statutes may now

be examined in light of the law laid down by this Court including Sections 5

and 41 of the IPC.  

(i) The JJ Act

95. A cursory reading of the JJ Act gives a clear indication that a girl child

who is in imminent risk of marriage before attaining the age of 18 years of

age is a child in need of care and protection (Section 2 (14) (xii) of the JJ

Act).   In our opinion, it cannot be said with any degree of rationality that

such a girl child loses her status as a child in need of care and protection

soon after she gets married.   The JJ Act provides that efforts must be made

to ensure the care, protection, appropriate rehabilitation or restoration of a

girl child who is at imminent risk of marriage and therefore a child in need

of care and protection. If this provision is ignored or given a go by, it would

put the girl child in a worse off situation because after marriage she could be

subjected to aggravated penetrative sexual assault for which she might not

             W.P. (C) No. 382 of 2013 Page 62

be physically, mentally or psychologically ready. The intention of the JJ Act

is  to  benefit  a  child  rather  than  place  her  in  difficult  circumstances.  A

contrary view would not only destroy the purpose and spirit of the JJ Act but

would also take away the importance of Article 15(3) of the Constitution.

Surely,  such  an  interpretation  and  understanding  cannot  be  given  to  the

provisions of the JJ Act.

(ii) The POCSO Act

96. Similarly, the provisions of the POCSO Act make it quite explicit that

the dignity and rights of a child below 18 years of age must be recognized

and respected. For this purpose, special provisions have been made in the

POCSO  Act  as  for  example  Section  28  thereof  which  provides  for  the

establishment of a Special Court to try offences under the Act. Section 29 of

the POCSO Act provides that where a person is prosecuted for committing

or abetting or attempting to commit an offence under Section 3 (penetrative

sexual  assault)  or  under Section 5 (aggravated penetrative sexual  assault)

then the Special Court shall presume that such a person has committed or

abetted or attempted to commit the offence unless the contrary is proved.

Similarly, the procedure and powers of a Special Court have been delineated

in Section 33 of the POCSO Act and this section provides for not only a

child  friendly  atmosphere  in  the  Special  Court  but  also  child  friendly

             W.P. (C) No. 382 of 2013 Page 63

procedures, some of which are given in subsequent sections of the statute.

Once  again  the  legislative  slant  is  in  favour  of  a  child  thereby  giving

substantive meaning to Article 15(3) of the Constitution.

97. However,  of  much  greater  importance  and  significance  is  Section

42-A of the POCSO Act. This section provides that the provisions of the

POCSO Act are in addition to and not in derogation of the provisions of any

other law in force which includes the IPC. Moreover, the section provides

that in the event of any inconsistency between the provisions of the POCSO

Act  and  any  other  law,  the  provisions  of  the  POCSO  Act  shall  have

overriding  effect.  It  follows  from  this  that  even  though  the  IPC

decriminalizes the marital rape of a girl child, the husband of the girl child

would  nevertheless  be  liable  for  punishment  under  the  provisions  of  the

POCSO Act for aggravated penetrative sexual assault.  

98. Prima facie it might appear that since rape is an offence under the IPC

(subject to Exception 2 to Section 375) while penetrative sexual assault or

aggravated penetrative sexual assault is an offence under the POCSO Act

and both are distinct and separate statutes, therefore there is no inconsistency

between the provisions of the IPC and the provisions of the POCSO Act.

However the fact is that there is no real distinction between the definition of

rape under the IPC and the definition of penetrative sexual assault under the

             W.P. (C) No. 382 of 2013 Page 64

POCSO Act. There is also no real distinction between the rape of a married

girl child and aggravated penetrative sexual assault punishable under Section

6  of  the  POCSO  Act.  Additionally,  the  punishment  for  the  respective

offences is the same, except that the marital rape of a girl child between 15

and 18 years of age is not rape in view of Exception 2 to Section 375 of the

IPC. In sum, marital rape of a girl child is effectively nothing but aggravated

penetrative  sexual  assault  and  there  is  no  reason  why  it  should  not  be

punishable under the provisions of the IPC. Therefore, it does appear that

only a notional or linguistic distinction is sought to be made between rape

and  penetrative  sexual  assault  and  rape  of  a  married  girl  child  and

aggravated  penetrative  sexual  assault.  There  is  no  rationale  for  this

distinction and it is nothing but a completely arbitrary and discriminatory

distinction.

Harmonious and purposive interpretation

99. The entire issue of the interpretation of the JJ Act, the POCSO Act,

the PCMA and Exception 2 to Section 375 of the IPC can be looked at from

yet  another  perspective,  the  perspective  of  purposive  and  harmonious

construction of statutes relating to the same subject matter. Long ago, it was

said by Lord Denning that when a defect appears, a judge cannot fold his

hands and blame the draftsman but must also consider the social conditions

             W.P. (C) No. 382 of 2013 Page 65

and give force and life to the intention of the Legislature. It  was said in

Seaford Court Estates Ltd. v. Asher28 that:

“A judge, believing himself to be fettered by the supposed rule that he  must  look  to  the  language  and  nothing  else,  laments  that  the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give “force and life” to the intention of the legislature.”

100. Similarly, in  Collector of Customs v. Digvijaya Singhji Spinning &

Weaving Mills29 it was said that where an alternative construction is open,

that  alternative  should  be  chosen  which  is  consistent  with  the  smooth

working of the system which the statute purports to regulate. It was said that:

“It is one of the well-established Rules of construction that “if the words of a statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of  the legislature”.  It  is  equally well-settled principle of construction that “Where alternative constructions are equally open that  alternative is  to be chosen which will  be  consistent  with the smooth  working  of  the  system  which  the  statute  purports  to  be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system”.”

28 [1949] 2 K.B. 481 affirmed in [1950] A.C. 508

29 AIR 1961 SC 1549

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101. That a constructive attitude should be adopted in interpreting statutes

was endorsed in Jugal Kishore v. State of Maharashtra30 when it was said

that:

“…..  Unless  the Acts  [Maharashtra  Agricultural  Land (Ceiling on Holdings)  Act,  1961  and  the  Bombay  Tenancy  and  Agricultural Lands  (Vidarbha  Region)  Act,  1958],  with  the  intention  of implementing  various  socio-economic  plans,  are  read  in  such complementary manner, the  operation of  the  different  Acts in the same field would create contradiction and would become impossible. It  is,  therefore,  necessary  to  take  a  constructive  attitude  in interpreting provisions of these types and determine the main aim of the particular Act in question for adjudication before the court.”

102. Finally,  from  the  purposive  and  harmonious  construction  point  of

view as well as the social context point of view, we may only draw attention

to the opinion expressed by the Constitution Bench in  Abhiram Singh v.

C.D. Commachen31 by one of us (Lokur, J) to supplement our view. It is not

necessary to repeat the observations made and conclusions given therein.

103. Viewed  from  any  perspective,  there  seems  to  be  no  reason  to

arbitrarily discriminate against a girl child who is married between 15 and

18 years of age. On the contrary, there is every reason to give a harmonious

and purposive construction to the pro-child statutes to preserve and protect

the human rights of the married girl child.

30 1989 Supp (1) SCC 589

31 (2017) 2 SCC 629

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Implementation of laws

104. The Preamble to our Constitution brings out our commitment to social

justice, but unfortunately, this petition clearly brings out that social justice

laws  are  not  implemented  in  the  spirit  in  which  they  are  enacted  by

Parliament.  Young  girls  are  married  in  thousands  in  the  country, and  as

Section 13 of the PCMA indicates, there is an auspicious day –  Akshaya

Trutiya - when mass child marriages are performed. Such young girls are

subjected to sexual intercourse regardless of their health, their ability to bear

children  and  other  adverse  social,  economic  and  psychological

consequences.  Civil society can do just so much for preventing such child

marriages but  eventually it  is  for  the Government of  India  and the State

Governments  to  take  proactive  steps  to  prevent  child  marriages  so  that

young girls in our country can aspire to a better and healthier life.  We hope

the State realizes and appreciates this.

Conclusion

105. On a complete assessment of the law and the documentary material, it

appears that there are really five options before us: (i) To let the incongruity

remain as it is – this does not seem a viable option to us, given that the lives

of  thousands  of  young  girls  are  at  stake;  (ii)  To  strike  down  as

unconstitutional Exception 2 to Section 375 of the IPC – in the present case

             W.P. (C) No. 382 of 2013 Page 68

this is also not a viable option since this relief was given up and no such

issue was raised; (iii)  To reduce the age of consent from 18 years to 15

years – this too is not a viable option and would ultimately be for Parliament

to decide; (iv) To bring the POCSO Act in consonance with Exception 2 to

Section 375 of  the IPC – this  is  also not  a  viable  option since it  would

require  not  only a  retrograde amendment  to  the  POCSO Act  but  also  to

several other pro-child statutes;  (v) To read Exception 2 to Section 375 of

the IPC in a purposive manner to make it in consonance with the POCSO

Act,  the  spirit  of  other  pro-child  legislations  and  the  human  rights  of  a

married girl child. Being purposive and harmonious constructionists, we are

of opinion that this is the only pragmatic option available. Therefore, we are

left  with absolutely no other option but to harmonize the system of laws

relating to children and require Exception 2 to Section 375 of the IPC to now

be meaningfully read 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.” It

is only through this reading that the intent of social justice to the married girl

child and the constitutional vision of the framers of our Constitution can be

preserved and protected and perhaps given impetus.  

             W.P. (C) No. 382 of 2013 Page 69

106. We make it clear that we have not at all dealt with the larger issue of

marital rape of adult women since that issue was not raised before us by the

petitioner or the intervener.

107.   We express our gratitude to Mr. Gaurav Agrawal, Advocate and Ms.

Jayna Kothari, Advocate for the effort that they have put in and the able

assistance that they have given us for the purpose of deciding this case.

…………………………J           New Delhi; (Madan B. Lokur)  

October 11, 2017

             W.P. (C) No. 382 of 2013 Page 70

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 382 OF 2013

INDEPENDENT THOUGHT ...PETITIONER(S)

Versus

UNION OF INDIA & ANR.       ...RESPONDENT(S)

J U D G M E N T

Deepak Gupta, J.

1. I have gone through the extremely erudite and well written judgment of my

learned brother Lokur, J..  I fully agree with both the reasoning given by him and

the  conclusions  arrived  at.   However,  I  am expressing  my own views  in  this

separate  concurring  judgment  wherein  I  have  given  some other  reasons  while

reaching the  same conclusion.

2. “Whether Exception 2 to Section 375 of the Indian Penal Code, in so far as it

relates to girls aged 15 to 18 years,  is  unconstitutional and liable to be struck

down” is the question for consideration in this writ petition.

             W.P. (C) No. 382 of 2013 Page 71

3. At the outset, it may be mentioned that in the main petition the challenge is

laid to  the entire  Exception 2.   However, during the course  of  arguments  Mr.

Gaurav  Agarwal,  learned  counsel  for  the  petitioner,  Independent  Thought,  a

registered Society and Ms. Jayna Kothari, learned counsel for the intervener, the

Child Rights Group, submitted that they are limiting their challenge to Exception 2

only in so far as it deals with the girl child aged 15 to 18 years.

4. Section 375 of the Indian Penal IPC (for short ‘IPC’) defines rape and reads

as follows:

“375. Rape.- A man is said to commit "rape" if he-— a.     penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or b.    inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or c.     manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such  woman  or  makes  her  to  do  so  with  him  or  any  other person; or d.    applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,  under  the  circumstances  falling  under  any  of  the  following seven 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.

             W.P. (C) No. 382 of 2013 Page 72

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 eighteen years of age. Seventhly.—When she is unable to communicate consent. Explanation 1.—For the purposes of this section, "vagina" shall also include labia majora. Explanation  2.—Consent  means  an  unequivocal  voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of  penetration  shall  not  by  the  reason  only  of  that  fact,  be regarded as consenting to the sexual activity. Exception  1.—A medical  procedure  or  intervention  shall  not constitute rape. Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

5. A husband who commits rape on his wife, as defined under Section 375 of

the IPC, cannot be charged with the said offence as long as the wife is over 15

years of age.  It may be made clear that this Court is not going into the issue of

“marital rape” of women aged 18 years and above and the discussion is limited

only to “wives” aged 15 to 18 years.  A man is guilty of rape if he commits any act

mentioned in Section 375 IPC, without the consent of the women if she is above

18 years of age.  If a man commits any of the acts mentioned in Section 375 IPC,

with a girl aged less than 18 years, then the act will amount to rape even if done

             W.P. (C) No. 382 of 2013 Page 73

with the consent of the victim.  However, as per Exception 2 of Section 375 IPC, if

the man is married to the woman and if the “wife” is aged more than 15 years then

the man cannot be held guilty of commission of the offence defined under Section

375, whether the wife consented to the sexual act or not.   

6. Section 375 of the IPC creates three classes of victims:

(i) The first class of victims are girls aged less than 18

years.    In  those  cases,  if  the  acts  contemplated  under

Section 375 IPC are committed with or without consent of

the victim, the man committing such an act is guilty of rape. (ii) The second class of victims are women aged 18 years

or above.  Such women can consent to having consensual

sex.   If  the  sexual  act  is  done  with  the  consent  of  the

woman,  unless  the  consent  is  obtained  in  circumstances

falling under clauses thirdly, fourthly and fifthly of Section

375  IPC no  offence  is  committed.  The  man  can  be  held

guilty of rape, only if the sexual act is done in absence of

legal and valid consent.   (iii) The third category of victims is married women.  The

exception exempts a man from being charged and convicted

under  Section  375  IPC for  any  of  the  acts  contemplated

             W.P. (C) No. 382 of 2013 Page 74

under this section if the victim is his “wife” aged 15 years

and above.   

To put it differently, under Section 375 IPC a man cannot even have consensual

sex with a girl if she is below the age of 18 years and the girl is by law deemed

unable to give her consent.  However, if the girl child is married and she is aged

above 15 years,  then such consent  is  presumed and there is  no offence if  the

husband has sex with his “wife”, who is above 15 years of age.  If the “wife” is

below 15 then the husband would be guilty of such an offence.

7. The issue is whether a girl below 18 years who is otherwise unable to give

consent can be presumed to have consented to have sex with her husband for all

times  to  come  and  whether  such  presumption  in  the  case  of  a  girl  child  is

unconscionable and violative of Articles 14, 16 and 21 of the Constitution of India.

THE LEGISLATIVE BACKGROUND

8. The IPC was enacted in the year 1860 and the age given in Exception 2 of

Section 375 has been changed from time to time.  Till 1929, no minimum age of

marriage  was  legally  fixed.   It  was  only  after  passing  of  the  Child  Marriage

Restraint  Act,  1929  (for  short  ‘the  Restraint  Act’)  that  the  minimum  age  for

marriage was fixed.  The Restraint Act was repealed by the Prohibition of Child

Marriage Act, 2006 (for short ‘the PCMA’).  A chart showing the ages of consent,

             W.P. (C) No. 382 of 2013 Page 75

from time to time, under clause Sixthly of Section 375 IPC, in Exception 2 to

Section 375 IPC and the Restraint Act/PCMA is as follows:

Year IPC Age of  Consent under Section 375,  6th Clause  I.P.C

Age under  Exception 2  to Sec. 375  I.P.C

Minimum  Age of  Marriage   under the  Restraint  Act/PCM A  

1860 - 10 Years 10 Years -

1891 Act 10 of 1891  (After the  Amendment of  IPC)

12 Years 12 Years -

1925 (After the  Amendment of  IPC)

14 Years 13 Years -

1929 (After Passing of  Child Marriage  Restraint Act )

14 Years 13 Years 14 Years

1940 After the  Amendment of the  I.P.C and Child  Marriage Act

16 Years 15 Years 15 Years

1978 - 16 Years 15 Years 18 Years

2013 - 18 Years 15 Years 18 Years

9. A perusal of the aforementioned chart clearly shows that when the IPC was

originally enacted in the year 1860, the age of consent under clause Sixthly of

Section 375 IPC and under Exception 2 of Section 375 IPC was 10 years.  In this

regard, the IPC was amended in 1891 and the age under both the provisions was

raised to 12 years.  In 1925, the age of consent was raised under clause Sixthly to

14 years but under the Exception 2 the age was retained at 13 years.  In 1929, the

Child Marriage Restraint Act was enacted.  Section 3 of this Act provided that the

             W.P. (C) No. 382 of 2013 Page 76

minimum age of the girl child, to be eligible for marriage, was 14 years.  In 1940,

the IPC was again amended and the age of consent under clause Sixthly was raised

to 16 years, but under Exception 2 to Section 375 IPC, the age was raised to 15

years and the minimum age of marriage under the Restraint Act was also 15 years.

In 1978, the IPC was again amended and the age of consent was raised to 16 years

but under Exception 2 to Section 375 IPC, no change was made.  In 1978, the

minimum  age  for  marriage  of  the  girl  child  was  raised  to  18  years  but  no

consequential amendment was made in the IPC.  In 2013, after the unfortunate

“Nirbhaya” incident took place, the Parliament raised the age of consent under

clause Sixthly to 18 years. The minimum age for marriage of a girl child remained

at 18 years, but no change was made in Exception 2 to Section 375 IPC and a girl

child who was married before the minimum age of marriage, could be subjected to

sexual intercourse (forcible or otherwise) by her husband and if she was over 15

years of age, the husband could not be charged with any offence.

10. At this stage, reference may be made to the Hindu Marriage Act.  In the

Hindu Marriage Act, as originally enacted in 1955, the minimum age for marriage

of a bride was 15 years and of a groom 18 years.  The Hindu Marriage Act was

amended in 1978 and the minimum age of marriage for a bride was enhanced to

18 years and for a groom to 21 years.   Identical  amendment was made in the

Restraint Act.   

             W.P. (C) No. 382 of 2013 Page 77

11. The Child Marriage Restraint Act, 1929 was repealed by the Prohibition of

Child Marriage Act, 2006 and this Act defines a child as follows:

“2.  Definitions.—In  this  Act,  unless  the  context  otherwise requires,—  

(e) “child”  means  a  person who,  if  a  male,  has  not  completed twenty-one  years  of  age,  and  if  a  female,  has  not  completed eighteen years of age.”

12. Section 3 of the PCMA makes child marriages voidable at the option of the

contracting party who is a child and reads as follows:

“3. Child marriages to be voidable at the option of contracting party being a child.—(1) Every child marriage, whether solemnised before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at  the time of the marriage:  

Provided that a petition for annulling a child marriage by a decree of nullity may be filed in the district court only by a contracting party to the marriage who was a child at the time of the marriage.  

(2) If  at  the time of filing a petition,  the petitioner  is  a minor, the petition  may  be  filed  through  his  or  her  guardian  or  next  friend alongwith the Child Marriage Prohibition Officer.  

(3) The petition under this section may be filed at any time but before the child filing the petition completes two years of attaining majority.

(4) While granting a decree of nullity under this section, the district court shall make an order directing both the parties to the marriage and their parents or their guardians to return to the other party, his or her parents or guardian,  as the case may be,  the money, valuables, ornaments and other gifts received on the occasion of the marriage by them from the other side, or an amount equal to the value of such valuables, ornaments, other gifts and money:

Provided that no order under this section shall be passed unless the concerned parties have been given notices to appear before the district court and show cause why such order should not be passed.”

             W.P. (C) No. 382 of 2013 Page 78

13. It would be pertinent to note that under the Restraint Act the punishment

under Section 3 for a male aged 18 years to 21 years, contracting a child marriage

was simple imprisonment, which could extend up to 15 days or with fine up to

Rs.1000/-  or  both  and  under  Section  4,  if  a  male  over  21  years  contracted  a

marriage with a female child,  the punishment  was simple imprisonment  which

could  extend  up  to  3  months.   Section  5  provided  punishment  of  simple

imprisonment  up  to  3  months  and  fine  with  regard  to  those  who  performed,

conducted or directed any child marriage.  Similar provisions existed in Section 6

with regard to the punishment of parents or guardians, who acted to promote child

marriage or permitted it to be solemnized or negligently failed to prevent the child

marriage to be solemnized.  Surprisingly, the proviso to Section 6 provided that no

women could be punished with imprisonment.  The punishments provided under

the  Restraint  Act  were  virtually  illusory  and  no  minimum  punishment  was

prescribed.   

14. The Restraint Act was repealed and replaced by the PCMA.  The provisions

of the PCMA are slightly more stringent.  Under Section 9 of the PCMA, if a male

adult above 18 years of age contracts a child marriage, he can be sentenced to

rigorous imprisonment up to 2 years or fine which may extend up to one lakh

rupees or both.  However, no minimum sentence is provided even under this Act.

Section 10 of  the PCMA provides punishment for those persons who perform,

             W.P. (C) No. 382 of 2013 Page 79

conduct, direct or abet a child marriage and the same sentence is provided.  As far

as the guardians and parents are concerned, the punishment for them is provided

under Section 11 and it is the same.  Again, the proviso lays down that no woman

shall be punishable with imprisonment.  Though this Court is not dealing with this

question directly  in  the present  petition,  it  is  obvious  that  a  woman would be

placed in the forefront by any person who gets a child marriage conducted.  Such a

woman cannot be sentenced to undergo imprisonment and at the most, a fine can

be  levied.   The  punishments  provided  are  neither  sufficiently  punitive  nor

deterrent.  Therefore, the PCMA has been breached with impunity.  I think the

time has come when this Act needs serious reconsideration, especially in view of

the harsh reality that a lot of child trafficking is taking place under the garb of

marriage  including  child  marriage.   More  stringent  punishments  should  be

provided and some minimum punishment should definitely be provided especially

to those mature adults who promote such marriages and who perform, conduct,

direct or abet any such marriage.  Otherwise, this legislation will never act as a

sufficient deterrent to prevent or even reduce child marriages.

15. Under Section 2(k) of the Juvenile Justice (Care and Protection of Children)

Act, 2000, a “juvenile” or “child” was defined to mean a person, who had not

completed 18 years of age.  The Juvenile Justice (Care and Protection of Children)

             W.P. (C) No. 382 of 2013 Page 80

Act,  2015 defines  a  child  under  section  2(12)  to  mean a  person  who has  not

completed 18 years of age.

16. Under the Protection of Women from Domestic Violence Act, 2005, a child

has been defined under Section 2(b) to mean any person below the age of 18 years.     17. Section 2(vii) of the Dissolution of Muslim Marriages Act, 1939 entitles a

women married under Muslim law to obtain a decree of dissolution of marriage if

she is given in marriage by her father or other guardian before she attained the age

of 15 years and she repudiates the marriage before attaining the age of 18 years

provided that the marriage has not been consummated.  This provision deals with

girls below the age of 15 years who are got married.  Such a girl is required to

repudiate her marriage before she attains majority and she can only repudiate the

marriage  if  the  marriage  has  not  been  consummated.   This  virtually  makes

mockery  of  the  PCMA.   Therefore,  even  in  a  marriage  which  is  void  under

PCMA, the girl will have to obtain a decree for dissolution of her marriage, that

too before she attains the age of majority and only if the marriage has not been

consummated.  Another anomalous situation is that if the husband has forcible sex

with such a girl, the marriage is consummated and the girl child is deprived of her

right to get the marriage annulled.   

18. Similarly under Section 13(2)(iv) of the Hindu Marriage Act, 1955, a Hindu

girl  can  file  a  petition  for  divorce  on  the  ground  that  her  marriage,  whether

             W.P. (C) No. 382 of 2013 Page 81

consummated or not, was solemnized before she attained the age of 15 years and

she has repudiated her  marriage after  attaining the age of  15 years  but  before

attaining the age of 18 years.  This is also not in consonance with the provisions of

PCMA, according to which marriage of a child bride below the age of 15 years is

void  and  there  is  no  question  of  seeking  a  divorce.   A void  marriage  is  no

marriage.  Another anomaly is that whereas a child bride, who is above 15 years

under PCMA, can apply for annulment of marriage up to the age of 20 years,

under Section 13(2)(iv) of the Hindu Marriage Act, a child bride under the age of

15 years must repudiate the marriage after attaining the age of 15 years but before

she attains the age of 18 years, i.e. even before she attains majority.  The question

that remains unanswered is who will represent or help this child, who has been

forced to marry to approach the Courts.   

19. It is obvious that while making amendments to various laws, some laws are

forgotten and consequential amendments are not made in those laws.  After the

PCMA was enacted both the Hindu Marriage Act,  1955 and the Dissolution of

Muslim  Marriages  and  Divorce  Act,  1939  also  should  have  been  suitably

amended, but this has not been done.  In my opinion, the PCMA is a secular Act

applicable to all.  It being a special Act dealing with children, the provisions of

this Act will prevail over the provisions of both the Hindu Marriage Act and the

Muslim Marriages and Divorce Act, in so far as children are concerned.

             W.P. (C) No. 382 of 2013 Page 82

20. Section 3 of the Majority Act, 1875 provides that a person shall attain the

age of  majority  on completing the age of  18 years  and not before.   It  would,

however,  be  pertinent  to  mention  that  Section  2  of  the  Indian  Majority  Act

contains a non-obstante clause excluding laws relating to marriage, divorce, dower

and adoption from the provisions of that Act.  Under Section 4(i) of the Guardians

and Wards Act, 1890 a minor has been defined to mean a person, who has not

attained  majority  under  the  Majority  Act.   Under  Section  4(a)  of  the  Hindu

Minority and Guardianship Act, 1956 a minor has been defined to mean a person

who has not  completed the age of  18 years.   Under the Representation of  the

People Act, 1951 a person is entitled to vote only after he attains the age of 18

years.

21.  Under the provisions of the aforesaid Acts a person, who is a minor and not

a major, is not entitled to deal with his property.  The property of such a minor can

be sold or transferred only if such sale or transfer is for the benefit of the minor

and after the permission of the court.   Section 11 of the Indian Contract Act, 1872

provides that only a person who has attained the age of majority and is of a sound

mind is competent to enter into a contract.  A contract entered into by a minor is

treated to be a void contract.

22. Keeping in view the mounting crimes against children, regardless of the sex

of the victim, Parliament enacted the Protection of Children from Sexual Offences

             W.P. (C) No. 382 of 2013 Page 83

Act,  2012  (for  short  ‘POCSO’),  which  came  into  force  on  14.11.2012.   The

Statement of Objects and Reasons of this Act reads as follows:

“STATEMENT OF OBJECTS AND REASONS  1. Article 15 of the Constitution, inter alia, confers upon the State powers to make special provision for children. Further, article 39, inter alia, provides that the State  shall  in  particular  direct  its  policy  towards  securing  that  the tender age of children are not abused and their childhood and youth are  protected  against  exploitation  and  they  are  given  facilities  to develop in a healthy manner and in conditions of freedom and dignity.  

2. The United Nations Convention on the Rights of Children, ratified by  India  on  11th  December,  1992,  requires  the  State  Parties  to undertake all appropriate national, bilateral and multilateral measures to prevent (a) the inducement or coercion of a child to engage in any unlawful  sexual  activity;  (b)  the  exploitative  use  of  children  in prostitution or other unlawful sexual practices; and (c) the exploitative use of children in pornographic performances and materials.  

3. The data collected by the National Crime Records Bureau shows that  there  has  been  increase  in  cases  of  sexual  offences  against children.  This  is  corroborated by the ‘Study on Child Abuse: India 2007’ conducted by the Ministry of Women and Child Development. Moreover,  sexual  offences  against  children  are  not  adequately addressed by the existing laws. A large number of such offences are neither  specifically  provided for  nor  are  they adequately  penalised. The interests of the child, both as a victim as well as a witness, need to be protected. It is felt that offences against children need to be defined explicitly  and  countered  through  commensurate  penalties  as  an effective deterrence.  

4. It is, therefore, proposed to enact a self contained comprehensive legislation  inter alia to  provide for protection of children from the offences of sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well being of the child at every  stage  of  the  judicial  process,  incorporating  child-friendly procedures for reporting, recording of evidence, investigation and trial of  offences  and  provision  for  establishment  of  Special  Courts  for speedy trial of such offences.  

5. The Bill would contribute to enforcement of the right of all children to safety, security and protection from sexual abuse and exploitation.”  

             W.P. (C) No. 382 of 2013 Page 84

23. POCSO is a landmark legislation for protection of child rights and to prevent

the sexual abuse and exploitation of children.  This Act deals with sexual offences

committed against a child and a child has been defined to be a person below the

age of 18 years under Section 2(d).  POCSO does not define rape, but it defines

penetrative  sexual  assault  under  Section  3  and  aggravated  penetrative  sexual

assault under Section 5 and the punishments are provided for them under Section 4

and 6 respectively.  Section 7 of the POCSO defines sexual  assault,  Section 9

defines aggravated sexual assault and punishments for those offences are provided

under Section 8 and 10 respectively.  Section 11 defines sexual harassment and

Section 12 provides the punishment for  sexual  harassment.   Chapter  III of  the

POCSO deals with use of children for pornographic purposes with which we are

not concerned in the instant case.  This Act creates Special Courts to deal with

offences against children.  Section 42 of the POCSO is very important for our

purpose and it provides that where an offence is punishable both under POCSO

and under IPC, then the offender found guilty would be liable for that punishment,

which is more severe.   

24. Section 42 and Section 42A of the POCSO read as follows:

“42.Alternate punishment. - Where an act or omission constitutes an offence  punishable  under  this  Act  and  also  under  sections  166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376C, 376D, 376E or  section 509 of  the  Indian  Penal  Code (45 of  1860),  then, notwithstanding anything contained in any law for the time being in force,  the  offender  found  guilty  of  such  offence  shall  be  liable  to

             W.P. (C) No. 382 of 2013 Page 85

punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.”

“42A. Act not in derogation of any other law. – The provisions of  this  Act  shall  be  in  addition  to  and  not  in  derogation  of  the provisions of any other law for the time being in force and, in case of any  inconsistency, the  provisions  of  this  Act  shall  have  overriding effect  on  the  provisions  of  any  such  law  to  the  extent  of  the inconsistency.”

25. Section 42A provides that the provisions of POCSO shall be in addition to

and  not  in  derogation  of  the  provisions  of  any  other  Act.   Therefore,  the

legislature, in its wisdom, thought that POCSO would supplant and would be in

addition to the other criminal provisions and where there was any inconsistency,

the  provisions  of  POCSO  would  override  any  other  law  to  the  extent  of

inconsistency.

26. Another  important  provision to which reference may be made is  Section

198(6) of the Code of Criminal Procedure (for short ‘the Code’).  The same reads

as follows:

“198.  Prosecution for offences against marriage:

     xxx xxx xxx

(6) No Court shall take cognizance of an offence under section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual inter-course by a man with his own wife, the wife being under eighteen years of age, if more than one year has elapsed from the date of the commission of the offence.”

The  age  “eighteen”  was  substituted  for  “fifteen”  by  Act  5  of  2009  w.e.f.

31.12.2009.  A perusal  of  the  aforesaid   provision  also  makes  it  clear  that  a

             W.P. (C) No. 382 of 2013 Page 86

complaint with regard to commission of offence under Section 375 IPC punishable

under Section 376 IPC can be taken cognizance of by a court within one year of

the commission of the offence even where “the wife” is below 18 years of age.  It

is, therefore, apparent that while amending Section 198 of the Code, the legislature

was visualising that there can be marital rape with a “wife” aged less than 18 years

but was prescribing a limitation of one year, for  taking cognizance of such an

offence.   However, no consequential  amendment  was  made to  Exception 2  of

Section 375 IPC.

WHO IS A CHILD?

27. If one analyses the provisions of all the laws which have been referred to

above, it is apparent that the legislature, in its wisdom, has universally enacted that

a person below the age of 18 years is deemed to be a child unable to look after his

or her own interests.  It would be very important to note that, in 2013 the IPC was

amended, post the unfortunate “Nirbhaya” incident and the age of consent under

clause Sixthly of Section 375 IPC was increased to 18 years.  The position as on

date is that  under the Protection of  Children from Sexual Offences Act,  2012,

Juvenile Justice (Care and Protection of Children) Act, Child Marriage Restraint

Act, 1929, Protection of Women from Domestic Violence Act, 2005, The Majority

Act, 1875, The Guardians and Wards Act, 1890, The Indian Contract Act, 1872

             W.P. (C) No. 382 of 2013 Page 87

and many other legislations, a person below the age of 18 years is considered to be

a child unable to look after his or her own interests.   

28. As far as marriage laws are concerned, as far back as 1978, the minimum

age of marriage of a girl child was increased to 18 years.  The Restraint Act, was

replaced by the PCMA wherein also marriage of a girl child aged below 18 years

is prohibited.  However, Section 3 of the PCMA makes a child marriage voidable

at the option of that party, who was a child at the time of marriage.  The petition

for annulling the child marriage must be filed within 2 years of the child attaining

majority.  Therefore, a girl who was married before she attained the age of 18

years,  can  get  her  marriage  annulled  before  she  attains  the  age  of  20  years.

Similarly, a male child can get the marriage annulled before attaining the age of 23

years.  Even when the child is minor, a petition for annulment can be filed by the

guardian or next friend of the child along with the Child Marriage Prohibition

Officer.  Unfortunately, both the number of prosecutions and the number of cases

for annulment of marriage filed under PCMA are abysmally low.

THE ILL EFFECTS OF A CHILD MARRIAGE

29. A lot of material has been placed before us both by Mr. Gaurav Agarwal,

learned  counsel  appearing  for  the  petitioner  and  Ms.  Jayna  Kothari,  learned

Counsel appearing for the Intervener, to indicate that child marriage is not in the

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interest of the girl child.  In my opinion, it is not necessary to refer to all the

material cited by learned counsel.  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?

30. A Child  marriage  will  invariably  lead  to  early  child  birth  and  this  will

adversely affect the health of the girl child.  In a report by the UNICEF32, there is

an article on ending child marriage and the ill effects of child marriage have been

set out thus:-

“Married girls are among the world’s most vulnerable people.  When their education is cut short, girls lose the chance to gain the skills and knowledge to secure a good job and provide for themselves and their families.  They are socially isolated.  As I observed among my former schoolmates  who were forced to  get  married,  the consciousness  of their isolation is in itself painful.

32  Report of UNICEF  “ON THE STATE OF THE WORLD’S CHILDREN 2016”.      A fair chance for girls - End Child Marriage by Angelique Kidjo  

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Subordinate  to  their  husbands and families,  married  girls  are  more vulnerable  to  domestic  violence,  and  not  in  a  position  to  make decisions about safe sex and family planning – which puts them at high  risk  of  sexually  transmitted  infections,  including  HIV, and of pregnancy  and  childbearing  before  their  bodies  are  fully  mature. Already risky pregnancies become even riskier, as married girls are less likely to  get  adequate medical  care.   During delivery, mothers who  are  still  children  are  at  higher  risk  of  potentially  disabling complications, like obstetric fistula, and both they and their babies are more likely to die.”  

31. In a study conducted on child marriages in India, based on the census of

201133, it was found that 3% girls in the age group of 10 to 14 years were got

married and about 20% girls were married before attaining the age of 19 years.

Unfortunately, this report deals with girls below the age of 19 years and not 18

years, but the report does indicate that more than 20% girls in this country are

married before attaining the age of 18 years.  Therefore, more than one out of

every 5 marriages violates the provisions of the PCMA and the Hindu Marriage

Act, 1955.

32. The World Health Organisation, in a Report34 dealing with the issue of child

brides found that though 11% of the births worldwide are amongst adolescents,

they account for 23% of the overall burden of diseases.  Therefore, a child bride is

more than doubly prone to health problems than a grown up woman.

33  A Statistical analysis of  CHILD MARRIAGE IN INDIA,  Based on Census 2011 published by  Young        Lives and National Commission for Protection of Child Rights (NCPCR)

34 World Health Organisation Report on “Early Marriages, Adolescent and Young  Pregnancies”, Sixty-    Fifth World Health Assembly dated 16th March, 2012  

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33. In  the  Report  of  the  Convention  on  the  Rights  of  the  Child35,  certain

recommendations have been made and the relevant portion of the Report is as

follows:-

“Harmful Practices

51. The Committee is  deeply concerned at  the high prevalence of child  marriages  in  the  State  party,  despite  the  enactment  of  the Prohibition  of  Child  Marriage  Act  (PCMA,  2006).   It  is  further concerned at barriers impeding the full implementation of the PCMA, such as the prevalence of social norms and traditions over the legal framework,  the  existence  of  different  Personal  Status  Laws establishing their own minimum age of marriage applicable to their respective religious community as well as the lack of awareness about the PCMA by enforcement officers.  It is also concerned about the prevalence of other harmful practices against girls such as dowry and devadasi.

52. The  Committee  urges  the  State  party  to  ensure  the  effective implementation  of  the  Prohibition  of  Child  Marriage  Act  (PCMA, 2006), including by clarifying that the PCMA supersede the different religious-based Personal Status Laws.  It  also recommends that the State  party  take  the  necessary  measures  to  combat  dowry,  child marriage  and  devadasi  including  by  conducting  awareness-raising programmes and campaigns with a view to changing attitudes, as well as  counselling  and  reproductive  education,  to  prevent  and  combat child marriages,  which are harmful to the health and well-being of girls.”

34. The General Assembly of United Nations adopted a Resolution36, relevant

portion of which, reads as follows:

“Expressing concern about the continued prevalence of child, early and forced  marriage  worldwide,  including  the  fact  that  there  are  still approximately 15 million girls married every year before they reach 18

35  Report of the United Nations Committee on the Rights of the Child (CRC) on the  Convention of the Rights of the Child,  dated 13th June, 2014 , dealing with India

36  Resolution adopted by the United Nations General Assembly on  19th December, 2016 on “Child, early and forced marriage”, Seventy-first session, Agenda Item 64(a)

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years of age and that more than 720 million women and girls alive today were married before their eighteenth birthday.

Recognizing that child, early and forced marriage is a harmful practice that  violates,  abuses  or  impairs  human  rights  and  is  linked  to  and perpetuates other harmful practices and human rights violations and that  such  violations  have  a  disproportionately  negative  impact  on women and girls, and underscoring the human rights obligations and commitments of States to promote and protect the human rights and fundamental  freedoms  of  women  and  girls  and  to  prevent  and eliminate the practice of child, early and forced marriage.”

35. In the National Family Health Survey-4, 2015-201637 some startling figures

are revealed.  It was found that at the time of carrying out the survey in 2014,

amongst  women in  the  age  group of  20-24 years,  almost  26.8% women were

married before they attained the age of  18 years,  i.e.  more than one out  of  4

marriages was of a girl child.  In the urban areas the percentage is 17.5% and it

rises to 31.5% in the   rural areas.  

36.  In the National  Plan of  Action for  Children,  201638,  the Government of

India itself has recognised the high rate of child marriages prevalent in the country

and the fact that a child marriage violates the basic rights of health, development

and protection of the child.  Relevant portion of the report reads as follows:

“A large number of children, especially girls are married before the legal age in India.  According to NFHS 3 (2005-06), 47.4 percent of women in the age 20-24 were married before 18, the percentage being higher for rural areas.  The situation has improved in 2013-14 as the RSOC data shows that 30.3 percent women in the age 20-24 were

37 India Fact Sheet- Issued by Government of India, Ministry of Health and Family Welfare

38  Drawn up by the Ministry of Women and Child Development, Government of India,                    (Published on 14th January, 2017)

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married before their legal age.  Early marriage poses various risks for the survival, health and development of young girls and to children born to them.  It is also used as a means of trafficking.”

37. In  a  Report39 based  on  the  Census,  2011,  the  consequences  of  child

marriages have been dealt with in the following terms:

“5.1 Consequences Child marriage is not only a violation of human rights, but is also

recognized as an obstacle to the development of young people.  The practice of child marriage cut shorts a critical stage of self-discovery and exploring one’s identity.  Child marriage is an imposition of a marriage partner on children or adolescents who are in no way ready and matured, and thus, are at a loss to understand the significance of marriage.  Their development gets comprised due to being deprived of freedom,  opportunity  for  personal  development,  and  other  rights including health and well-being, education; and participation in civic life and nullifies their basic rights as envisaged in the United Nation’s Convention  on  the  Right  of  the  Child  ratified  by  India  in  1989. Marriage at a young age prevents both girls and boys from exercising agency  in  making  important  life  decisions  and  securing  basic freedoms, including pursuing opportunities for education,  earning a sustainable livelihood and accessing sexual health and rights.

The  prevalent  practice  of  child  marriage  has  detrimental consequences  for  both  boys  and  girls,  but  has  more  grave  and far-reaching  adverse  effects  on  girls.   Within  a  patriarchal  family structure,  girls  have  relatively  little  power,  but  young  and  newly married  women are  particularly  powerless,  secluded and voiceless. Adolescent girls have little choice about whom and when to marry, whether or not to have sexual relations, and when to bear children. This  is  well  elaborated in  a study of girls  in  the age group 10-16 years.  It was found that they were oppressed in several ways such as:

• They  had  to  submit  unquestioningly  to  the  parents’  decision regarding their marriage. • They were over-burdened with household chores. • They had limited knowledge of their body and     its functioning. • They  were  unaware  of  sexual  changes,  contraception,  child bearing and rearing.

39  A Statistical Analysis of Child Marriage in India, Based on Census, 2011    (Published by Young Lives and National Commission for Protection of Child Rights(NCPCR)     June 2017, New Delhi     

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• They dropped out of school on attaining puberty. • They had no time for leisure and social interaction. • They were discriminated in matters of food intake and expressing their views within the family.

Imagine the fate of a young girl with the above profile if she is to face marital  life  and its  challenges during adolescence.   The adolescent married girl is more at risk.  She is less likely to be allowed out of the house, to have access to services and usually, not be given space or freedom to exert agency.  Within the marital home, which in majority of  the  cases  is  a  joint  family,  she  will  probably  not  have  much communication with her husband, and will end up socially isolated, with very little contact with her parental home.”

38. This Report40 also notices upswing of female deaths during pregnancy in the

age  groups of  15-19 years  and attributes  these  deaths  to  the  death  of  teenage

mothers.  The relevant portion of the report reads as follows:

“Census data have demonstrated an upswing of female deaths in the age group of 15-19 years.  This high mortality rate could be attributed to the deaths of teenage mothers.  Child marriage virtually works like a  double-edged  sword;  lower  age  at  marriage  is  significantly associated with worse outcomes for the child and worse pregnancy outcomes  for  the  mother.   All  these  factors  push  girls  and  their families  into  perpetuation  of  intergenerational  poverty  and marginalisation.....”   

39. This  Report41 deals  with  various  other  aspects  and  some  apposite

observations are as follows:

“A young girl who is still struggling to understand her own anatomy, when  forced  to  make  conjugal  relations,  often  shows  signs  of post-traumatic  stress  and depression  owing to  sexual  abuse  by  her

40 A Statistical Analysis of Child Marriage in India, Based on Census, 2011    (Published by Young Lives and National Commission for Protection of Child Rights(NCPCR),    June 2017, New Delhi

41  A Statistical Analysis of Child Marriage in India, Based on Census, 2011    (Published by Young Lives and National Commission for Protection of Child Rights(NCPCR)     June 2017, New Delhi

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older  partner.   Neither  the  bodies  of  these  young  brides  nor  their innocent little minds are prepared, therefore, forced sexual encounters can lead to irreversible physical and psychological damage.  A study conducted in 2013 showed that young girls are three times more likely to experience marital rape.”

This report reveals a shocking aspect that girls below the age of 18 years are

subjected to three times more marital rape as compared to the grown up women.    

40. A perusal of the various reports and data placed before us clearly shows that

marriage of the child not only violates the human rights of a child but also affects

the health of the child.

41. Reference may be made to certain decisions cited before us.  The Delhi High

Court in Association for Social Justice & Research v. Union of India & Ors.42,

was dealing with a case where a girl aged between 16 to 18 years was married off

to a man stated to be over 40 years of age.  The Court noted the ill effects of child

marriage and gave a direction that the child will remain with her parents and her

marriage will not be consummated till she attains the age of 18 years.  Thereafter,

a Full Bench of the Delhi High Court in Court on its own motion (Lajja Devi) &

Ors.  v. State  &  Ors.43,  while  dealing  with  the  provisions  of  PCMA and  also

referring to the provisions of Sections 375 and 376 IPC and after noticing the

judgment  passed  in  the  case  of  Association  For  Social  Justice  &  Research

(supra), again reiterated that child marriage is a social evil, which endangers the

42 [2010 (118) DRJ 324(DB)]

43 W.P.(Crl.) No.338 of 2008

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life  and  health  of  the  child.   The  ill  effects  of  child  marriage  have  been

summarised in the following manner:

“(i)  Girls who get married at an early age are often more susceptible to  the  health  risks  associated  with  early  sexual  initiation  and childbearing, including HIV and obstetric fistula. (ii)  Young  girls  who  lack  status,  power  and  maturity  are  often subjected to domestic violence, sexual abuse and social isolation. (iii) Early marriage almost always deprives girls of their education or meaningful work, which contributes to persistent poverty. (iv) Child  Marriage  perpetuates  an  unrelenting  cycle  of  gender inequality, sickness and poverty. (v)  Getting  the  girls  married  at  an  early  age  when  they  are  not physically  mature,  leads  to  highest  rates  of  maternal  and  child mortality.”

42. The Full Bench, with regard to Section 375 IPC before its amendment in

2013, made the following observations:

“32.   It  is  distressing  to  note  that  the  Indian  Penal  Code,  1860 acquiesces child marriage.  The exception to Section 375 specifically lays down that sexual intercourse of man with his own wife, the wife not being under fifteen years of age is not rape, thus ruling out the possibility of marital rape when the age of wife is above fifteen years.  On the other hand, if the girl is not the wife of the man, but is below sixteen, then the sexual intercourse even with the consent of the girl amounts to rape?  It is rather shocking to note the specific relaxation is given  to  a  husband  who  rapes  his  wife,  when  she  happens  to  be between 15-16 years.  This provision in the Indian Penal Code, 1860 is  a  specific  illustration  of  legislative  endorsement  and sanction  to child marriages.”   

43. A Full  Bench  of  Madras  High  Court  in  T. Sivakumar  v.  Inspector  of

Police44, dealt with the provisions of the PCMA.  It held that a marriage contracted

44  H.C.P. No. 907 of 2011, vide its judgment dated 3rd November, 2011

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with a female less than 18 years and more than 15 years is not a void marriage but

is only a voidable marriage.  However, the Court went on to hold that stricto sensu

the marriage could not be called a valid marriage since the child bride had the

option of getting the marriage annulled till she attains the age of 20 years.  It held

as follows:

“The marriage contracted by a person with a female of less than 18 years is voidable and the same shall be subsisting until it is annulled by a  competent  Court  under  Section  3  of  the  Prohibition  of  Child Marriage  Act.  The  said  marriage  is  not  a  “valid  marriage” stricto sensu as  per  the  classification  but  it  is  “not  invalid”.  The  male contracting party shall not enjoin all the rights which would otherwise emanate  from a  valid  marriage stricto  sensu,  instead  he will  enjoin only limited rights.”

Reference to these judgments has been made only for the purpose of highlighting

the concern shown by the Courts with regard to child marriage and the manner in

which the Courts have consistently held that the child marriage is an evil which

should be avoided.

THE KARNATAKA EXPERIENCE    

44. A writ petition45 was filed in the Karnataka High Court, raising the issue of

validity of child marriages.  In its order dated 10th November, 2010 the Karnataka

High Court noted as follows:

45 Writ Petition No.11154/2006 (GM-RES-PIL), Muthamma Devaya & Anr. v. Union of India &  Ors.

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“The narration of facts in the present writ petition is heart rendering. The photographs appended to the writ petition have been a cause of deep distress to us.  The photographs reveal, the marriage of minor girls,  not  yet  in  their  teens,  to  fully  grown  men.   In  one  of  the photographs, the girl has been made to stand on a chair, so that she could garland her tall and fully grown groom.  Forced marriage of the girl child, one realises, is one of the manifestations of cruelty, possibly without  any  equivalent  comparison.   It  seems  that  the  practice  is common  place  in  this  part  of  the  world.   It  may  have  remained unchecked  for  a  variety  of  reasons  including,  poverty,  lack  of education, culture and ignorance.  We are of the view that allowing the evil to continue without redressing it, would make us a party to the disgraceful activity.”

45. After  making  the  aforesaid  observations,  the  Karnataka  High  Court

constituted  a  four  Member  committee,  headed  by  Dr. Justice  Shivraj  V. Patil,

former Judge of this Court, to expose the extent of practice of child marriage.  The

Committee was also requested to suggest ways and means to root out the evil of

child marriage from society and to prevent it to the maximum extent possible.  The

Core Committee submitted its report and made various recommendations.  One of

its recommendations was that marriage of a girl child below the age of 18 years

should be declared void ab initio.  Pursuant to the report of the Core Committee, in

the State of Karnataka an amendment was made in the PCMA and Section 1(A)

has been inserted after sub-section 2 Section 3, which reads as under:

“(1A) Notwithstanding anything contained in  sub-section (1)  every child marriage solemnized on or after the date of coming into force of the Prohibition of Child Marriage (Karnataka Amendment) Act, 2016 shall be void ab initio.”

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46. Therefore, any marriage of a child, i.e. a female aged below 18 years and a

male below 21 years is void ab initio in the State of Karnataka.  This is how the

law should have been throughout the country.  Where the marriage is void, there

cannot be a husband or a wife and I have no doubt that protection of Exception 2

to  Section  375  IPC cannot  be  availed  of  by  those  persons,  who  claim  to  be

“husband” of “child brides” pursuant to a marriage which is illegal and void.   

47. This leads to an anomalous situation.  In Karnataka, if a husband has sexual

intercourse with his “wife” aged below 18 years, since such marriage would be

void ab initio,  the wife cannot be treated to be a legal wife and, therefore, the

husband cannot get the benefit of Exception 2 to Section 375 IPC whereas in rest

of  the  country  he  would  be  entitled  to  the  benefit  of  such  exception  and  be

immune from prosecution.  

THE DEFENCE OF SOCIAL REALITY

48. The main defence raised on behalf of the Union of India is that though the

practice of child marriage may be reprehensible, though it may have been made

illegal, the harsh reality is that 20% to 30% of female children below the age of 18

years are got married in total violation of the PCMA.  According to the Union of

India,  keeping in view this  stark reality and also keeping in view the sanctity

which is attached to a union like marriage, the Parliament, in its wisdom, thought

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it fit to retain the age of fifteen in Exception 2 to Section 375 IPC.  It has also been

urged that when Parliament enacts any law which falls within its jurisdiction, then

this Court should not normally interfere with that Act.  When any law is passed,

the Court must presume that the Parliament has gone into all aspects of the matter.

Though it was faintly urged before us by learned counsel for the petitioner that the

Parliament did not go into certain aspects, this Court is clearly of the view that

such ignorance cannot be imputed to Parliament.  In our constitutional framework,

where there is division of powers, each repository of power must respect the other

and this Court must extend to the Parliament the respect it deserves.  One cannot

and should not impute ignorance to  the legislature.  

49. The stand of the Union of India may be summarised as follows:- (i)  “Economic  and  educational  development  in  the  country  is  still uneven  and  child  marriages  are  still  taking  place.   It  has  been, therefore, decided to retain the age of 15 years under Exception 2 of Section  375  of  IPC so  as  to  give  protection  to  husband  and  wife against criminalizing the sexual activity between them.

(ii)  As  per  National  Family  Health  Survey-III,  46%  of  women between the ages 18-29 years in India were married before the age of 18.  It is also estimated that there are 23 million child brides in the country.  Hence, criminalizing the consummation of a marriage union with  a  serious  offence  such as  rape  would  not  be  appropriate  and practical.

(iii) Providing punishment for child marriage with consent does not appear to be appropriate in view of socio-economic conditions of the country.  Thus, the age prescribed in Exception 2 of Section 375 of IPC has been retained considering the basic facts of the still evolving social norms and issues.  

(iv) The Law Commission also recommended for raising the age from 15 years to  16 years and it  was incorporated in  the Criminal  Law (Amendment)  Ordinance,  2013.   However,  after  wide  ranging

             W.P. (C) No. 382 of 2013 Page 100

consultations with various stakeholders it was further decided to retain the age at 15 years.

(v) Exception 2 of Section 375 of IPC envisages that if the marriage is solemnized at the age of 15 years due to traditions, it should not be a reason to book the husband in the case of offence of rape under the IPC.

(vi) It is also necessary that the provisions of law should be in such a manner that it cannot affect a particular class of society.  Retaining the age  of  15  years  in  Exception  2  of  Section  375  of  IPC  has  been provided considering the social realities of  the nation.”

50. Certain other facts may be noted which, though not strictly necessary for

deciding  the  legal  issues,  are  necessary  to  decide  the  background  in  which

amendment to Section 375 IPC and other criminal laws were carried out.  These

facts clearly show that Parliament knowingly took a decision not to criminalize

sexual  activity  between  husband  and  wife.   In  the  84th  Report  of  the  Law

Commission, it was recommended that the age of consent under clause Sixthly of

Section  375 IPC,  should  be  increased  to  18 years  and Exception 2  should  be

deleted.  In the 172nd Report of the Law Commission, it was recommended that the

age of consent under clause Sixthly should be retained at 16 years, but the Law

Commission specifically opined that there should be no distinction on account of

marriage of the girl child and the age in Exception 2 be raised from 15 to 16 years.

The Justice Verma Committee did not make any recommendation to change the

age of consent under clause Sixthly. However Parliament, while amending the IPC

in the year 2014, in the wake of the “Nirbhaya” incident, decided to increase the

             W.P. (C) No. 382 of 2013 Page 101

age of consent to 18 years under clause Sixthly, but did not make any change in

Exception 2 of Section 375 IPC.

51. Interestingly, though the Verma Committee did not recommend that the age

of consent should be increased under clause Sixthly from 16 to 18 years, but it did

recommend that Exception 2 should be completely deleted.  The Parliament took

note of the Verma Committee report.  It also took note of the recommendations of

the Law Commission and a Standing Committee was constituted and Parliament

enacted this law pursuant to the recommendations of the Standing Committee.  It

would also be pertinent to mention that one Member of Parliament, Mr. Saugata

Roy moved a Private Member’s Bill to fix the age at 18 years in Exception 2 of

Section  375  IPC,  but  that  amendment  was  not  carried.   Interestingly,  the

amendment  to  Section 375 IPC and other  sections  relating to  offences against

women  and  the  POCSO  were  incorporated  by  one  Amending  Act  i.e.,  The

Criminal Law (Amendment) Act, 2013.  After the “Nirbhaya” case, the Juvenile

Justice (Care and Protection of Children) Act, 2015 was also amended in 2016 and

a child in conflict with law over the age of 16 years, if charged with a heinous

offence, can be tried in a court of law if the Juvenile Justice Board feels that he

was mature enough to commit a crime.

             W.P. (C) No. 382 of 2013 Page 102

POWER OF THE COURT TO INTERFERE  

52. It is a well settled principle of law that when the constitutional validity of the

law enacted by the legislature is under challenge and there is no challenge to the

legislative  competence,  the  Court  will  always  raise  a  presumption  of  the

constitutionality of the legislation.  The courts are reluctant to strike down laws as

unconstitutional unless it is shown that the law clearly violates the constitutional

provisions or the fundamental rights of the citizens.  The Courts must show due

deference to the legislative process.  

53. There  can  be  no  dispute  with  the  proposition  that  Courts  must  draw  a

presumption of constitutionality in favour of laws enacted by the legislature.  In

Sub-Divisional Magistrate v. Ram Kali46,  this Court observed as follows:

“.....The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, and its laws are directed  to  problems  made  manifest  by  experience  and  its discriminations are based on adequate grounds.”

54. Thereafter, in Pathumma & Ors. v. State of Kerala & Ors.47,  this Court held

that the Court would interfere only when the statute clearly violates the rights of

the citizens provided under Part III of the Constitution or where the Act is beyond

46 (1968) 1 SCR 205

47 (1978) 2 SCC 1

             W.P. (C) No. 382 of 2013 Page 103

the legislative competence or such similar grounds.  The relevant observations are

as follows:

“6.  It  is  obvious  that  the  Legislature  is  in  the  best  position  to understand and appreciate the needs of the people as enjoined by the Constitution to bring about social  reforms for the upliftment of the backward  and  the  weaker  sections  of  the  society  and  for  the improvement  of  the  lot  of  poor  people.  The  Court  will,  therefore, interfere in this process only when the statute is clearly violative of the right  conferred on the  citizen under  Part  III  of  the  Constitution  or when the Act is beyond the legislative competence of the legislature or such  other  grounds.  It  is  for  this  reason  that  the  Courts  have recognised  that  there  is  always  a  presumption  in  favour  of  the constitutionality of a statute and the onus to prove its invalidity lies on the party which assails the same...”

55. In Government of A.P. v. P. Laxmi Devi48, this Court held thus:

“66.  As observed by the Privy Council in Shell Co. of Australia v. Federal  Commr. of  Taxation  [1931 AC 275:1930  All  ER Rep  671 (PC)] (All ER p. 680 G-H) “...unless it becomes clear beyond reasonable doubt that the legislation in question transgresses the limits laid down by the organic law of the Constitution, it must be allowed to stand as the true expression of the national will...” 67. Hence if two views are possible, one making the provision in the statute  constitutional,  and the  other  making  it  unconstitutional,  the former should be preferred vide Kedar Nath Singh v. State of Bihar [AIR  1962  SC  955].  Also,  if  it  is  necessary  to  uphold  the constitutionality of a statute to construe its general words narrowly or widely,  the  court  should  do  so  vide  G.P.  Singh’s  Principles  of Statutory Interpretation, 9th Edn., 2004, p. 497......”

56. In  Subramanian Swamy v. Director, CBI49,  a Constitution Bench of  this

Court laid down the following principle: 48 (2008) 4 SCC 720

49 (2014) 8 SCC 682

             W.P. (C) No. 382 of 2013 Page 104

“Court’s approach 49.  Where there is  challenge to  the constitutional validity of a law enacted by the legislature, the Court must keep in view that there is always a presumption of constitutionality of an enactment, and a clear transgression  of  constitutional  principles  must  be  shown.  The fundamental nature and importance of the legislative process needs to be  recognised by the  Court  and due  regard and deference  must  be accorded to the legislative process.  Where the legislation is sought to be challenged as being unconstitutional and violative of Article 14 of the Constitution, the Court must remind itself to the principles relating to  the  applicability  of  Article  14  in  relation  to  invalidation  of legislation.  The two dimensions  of  Article  14 in  its  application  to legislation and rendering legislation invalid are now well recognised and these are: (i) discrimination, based on an impermissible or invalid classification, and (ii) excessive delegation of powers; conferment of uncanalised  and unguided powers  on the executive,  whether  in  the form of delegated legislation or by way of conferment of authority to pass  administrative  orders  –  if  such  conferment  is  without  any guidance,  control  or  checks,  it  is  violative  of  Article  14  of  the Constitution.  The Court also needs to be mindful that a legislation does  not  become  unconstitutional  merely  because  there  is  another view or because another method may be considered to be as good or even more effective, like any issue of social, or even economic policy.  It is well settled that the courts do not substitute their views on what the policy is.”

57. I am conscious of the self imposed limitations laid down by this Court while

deciding the issue whether a law is constitutional or not. However, if the law is

discriminatory, arbitrary or violative of the fundamental rights or is beyond the

legislative competence of the legislature then the Court is duty bound to invalidate

such a law.  

58. Justice H.R. Khanna in the case of  State of Punjab v. Khan Chand50 held

that when Courts strike down laws they are only doing their duty and no element

50 (1974) 1 SCC 549

             W.P. (C) No. 382 of 2013 Page 105

of judicial arrogance should be attributed to the Courts when they do their duty

under the Constitution and determine whether the law made by the legislature is in

conformity  with  the  provisions  of  the  Constitution  or  not.   The  relevant

observations are  as follows:

“12. It would be wrong to assume that there is an element of judicial arrogance in the act of the Courts in striking down an enactment. The Constitution has assigned to the Courts the function of determining as to whether the laws made by the Legislature are in conformity with the provisions of the Constitution. In adjudicating the constitutional validity of statutes, the Courts discharge an obligation which has been imposed upon them by the Constitution. The Courts would be shirking their  responsibility  if  they  hesitate  to  declare  the  provisions  of  a statute to be unconstitutional, even though those provisions are found to be violative of the Articles of the Constitution. Articles 32 and 226 are  an  integral  part  of  the  Constitution  and  provide  remedies  for enforcement of fundamental rights and other rights conferred by the Constitution. Hesitation or refusal on the part of the Courts to declare the provisions of an enactment to be unconstitutional,  even though they are found to infringe the Constitution because of any notion of judicial humility would in a large number of cases have the effect of taking  away  or  in  any  case  eroding  the  remedy  provided  to  the aggrieved parties by the Constitution. Abnegation in matters affecting one’s own interest may sometimes be commendable but abnegation in a matter  where power is  conferred to protect  the interest  of others against  measures  which are violative of  the Constitution is  fraught with serious consequences. It is as much the duty of the Courts to declare  a  provision  of  an  enactment  to  be  unconstitutional  if  it contravenes any Article of the Constitution as it is theirs to uphold its validity in case it is found to suffer from no such infirmity.”

59.  Therefore,  the  principle  is  that  normally  the  Courts  should  raise  a

presumption in favour of the impugned law; however, if the law under challenge

violates  the  fundamental  rights  of  the  citizens,  the  law  is  arbitrary,  or  is

discriminatory, the Courts can either hold the law to be totally unconstitutional and

strike down the law or the Court may read down the law in such a manner that the

             W.P. (C) No. 382 of 2013 Page 106

law when read down  does not violate the Constitution.  While the Courts must

show restraint while dealing with such issues, the Court cannot shut its eyes to the

violations of the fundamental rights of the citizens.  Therefore, if the legislature

enacts  a  law  which  is  violative  of  the  fundamental  rights  of  the  citizens,  is

arbitrary and discriminatory, then the Court would be failing in its duty if it does

not either strike down the law or read down the law in such a manner that it falls

within the four corners of the Constitution.   

60. It is not the job of the Court to decide whether a law is good or bad.  Policy

matters  fall  within the realm of legislature and not of  the Courts.   The Court,

however,  is  empowered  and  has  the  jurisdiction  to  decide  whether  a  law  is

unconstitutional or not.   

61. “The law is an ass” said Mr. Bumble51.  That may be so. The law, however,

cannot be arbitrary or discriminatory.  Merely because a law is asinine, it cannot

be set  aside.   However, if  the law is  arbitrary, discriminatory and violates  the

fundamental  rights  guaranteed to  the citizens of  the country, then the law can

either be struck down or can be read down to make it in consonance with the

Constitution of India.

51 Oliver Twist: Author Charles Dickens

             W.P. (C) No. 382 of 2013 Page 107

WHETHER EXCEPTION 2 TO SECTION 375 IPC IS ARBITRARY?

62. Before dealing with this issue, it would be necessary to point out that earlier

there was divergence of opinion as to whether a law could be struck down only on

the ground that it  was arbitrary.  In  Indira Nehru Gandhi v.  Raj Narain52 the

Court struck down clauses 4 and 5 of  Article 329A of the Constitution on the

ground of arbitrariness.  Reliance was placed on the celebrated judgment of this

Court passed in the case of Keshavananda Bharati v. State of Kerala53.   In Para

681 of Raj Narain (supra), Chandrachud J., held as follows:

“681. It follows that clauses (4) and (5) of Article 329A are arbitrary and are calculated to damage or destroy the rule of law. Imperfections of language hinder a precise definition of the rule of law as of the definition  of  ‘law’ itself.  And  the  Constitutional  Law of  1975  has undergone many changes since A.V. Dicey, the great expounder of the rule  of law, delivered his lectures as Vinerian Professor of English Law  at  Oxford,  which  were  published  in  1885  under  the  title, “Introduction to  the Study of  the  Law of  the  Constitution”.  But so much, I suppose, can be said with reasonable certainty that the rule of law  means  that  the  exercise  of  powers  of  government  shall  be conditioned by law and that subject to the exceptions to the doctrine of equality,  no  one  shall  be  exposed  to  the  arbitrary  will  of  the Government. Dicey gave three meanings to rule of law: Absence of arbitrary power, equality before the law or the equal subjection of all classes to the ordinary law of the land administered by ordinary law courts and that the Constitution is not the source but the consequence of  the  rights  of  individuals,  as  defined  and  enforced  by  the courts……….”

52  1975 (Supp.) SCC 1

53  (1973) 4 SCC 225.

             W.P. (C) No. 382 of 2013 Page 108

63. The aforesaid case was one of the first cases in which a law was set aside on

the ground of being arbitrary.  In  E.P. Royappa v.  State of Tamil  Nadu  54 the

doctrine of arbitrariness was further expanded.  Bhagwati, J., eruditely explained

the principle in the following terms.

“85.............From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is  therefore violative of Article 14,  and if  it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure  fairness  and  equality  of  treatment.  They  require  that  State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant  considerations  because  that  would  be  denial  of  equality. Where the operative reason for  State  action,  as  distinguished from motive inducing from the antechamber of the mind, is not legitimate and  relevant  but  is  extraneous  and outside  the  area  of  permissible considerations, it would amount to mala fide exercise of power and that is hit  by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16.”

64. The doctrine developed in Royappa’s case (supra) was further advanced in

the  case  of  Maneka  Gandhi v.  Union  of  India55.  In  this  case,  the  test  of

reasonableness was introduced and it was held that a law which is not “right, just

and fair” is arbitrary. The following observations are apposite:-

“7...........The  principle  of  reasonableness,  which  legally  as  well  as philosophically, is an essential element of equality or non-arbitrariness

54 (1974) 4 SCC 3

55  (1978) 1 SCC 248

             W.P. (C) No. 382 of 2013 Page 109

pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.”

65. This  principle  was  followed  in  the  cases  of  A.L.  Kalra v.  Project  and

Equipment Corpn.56,  Babita Prasad v.  State of Bihar57,  Ajay Hasia v.  Khalid

Mujib Sehravardi58 and Dr. K.R. Lakshmanan v. State of Tamil Nadu59.  In the

case of Ajay Hasia (supra), a Constitution Bench of this Court held as follows:

“16......Wherever  therefore  there  is  arbitrariness  in  State  action whether it be of the legislature or of the executive or of an ‘authority’ under Article 12, Article 14 immediately springs into action and strikes down such State  action.  In  fact,  the concept  of  reasonableness  and non-arbitrariness  pervades  the  entire  constitutional  scheme and is  a golden  thread  which  runs  through  the  whole  of  the  fabric  of  the Constitution.”

66. In  State of A.P. v.  McDowell & Co.60,  a three-Judge Bench of this Court

struck a discordant note and rejected the plea of the Amending Act being arbitrary.

The Court held that an enactment could be struck down if it is being challenged as

violative of Article 14 only if it is found that it is violative of equality clause, equal

protection clause or violative of fundamental rights.  The Court went on to hold

56  (1984) 3 SCC 316,

57  1993 Supp (3) SCC 268

58  (1981) 1 SCC 722

59  ( 1996) 2 SCC 226

60   (1996) 3 SCC 709

             W.P. (C) No. 382 of 2013 Page 110

that an enactment cannot be stuck down only on the ground that the Court thinks

that  it  is  unjustified.   This  judgment  need  not  detain  us  for  long  because  in

Shayara Bano v. Union of India & Ors.61 popularly known as the “Triple Talaq

case”, this Court held that this judgment did not take note of binding judgments of

this Court passed by a Constitution Bench, in the case of Ajay Hasia (supra) and a

three-Judge Bench in the case of Dr.K.R. Lakshmanan (supra).  After discussing

the entire law on the subject, Nariman, J., in his judgment held as follows:

“It  is,  therefore,  clear  from  a  reading  of  even  the  aforesaid  two Constitution Bench judgments that Article 14 has been   referred   to   in   the   context of   the constitutional invalidity of statutory law to show that such statutory law will be struck down if it is found to be “arbitrary”.

   xxx xxx xxx

xxx xxx xxx

“55.........The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as  subordinate  legislation  under  Article  14.  Manifest  arbitrariness, therefore,  must  be  something  done  by  the  legislature  capriciously, irrationally and/or without adequate determining principle. Also, when something  is  done  which  is  excessive  and  disproportionate,  such legislation  would  be  manifestly  arbitrary. We are,  therefore,  of  the view that arbitrariness in the sense of manifest arbitrariness as pointed out  by  us  above  would  apply  to  negate  legislation  as  well  under Article 14.”

Therefore, there can be no dispute that a law can be struck down if the Court

find it is arbitrary and falls foul of Article 14 and other fundamental rights.

61   WP(C) No.118/2016 and connected matters [(2017) Vol. 8 SCALE 178]

             W.P. (C) No. 382 of 2013 Page 111

67. In  this  case,  we  are  concerned  mainly  with  Article  14  and  21  of  the

Constitution of India.  The legislative history given above clearly indicates that a

child has universally been defined as a person below 18 years of age in all the

enactments.  This has been done for the reason that it is perceived that a person

below  the  age  of  18  years  is  not  fully  developed  and  does  not  know  the

consequences of his/her actions.  Not only is a person below the age of 18 years

treated to be a child, but is also not even entitled to deal with his property, enter

into a contract or even vote.   

68. The fact  that  child  marriage  is  an  abhorrent  practice  and  is  violative  of

human rights of the child is not seriously disputed by the Union of India.  The only

justification given is that since a large number of child marriages are taking place,

it would not be proper to criminalize the consummation of such child marriages.

It is 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  criminalize the consummation of  such  child

marriages.

69. 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

             W.P. (C) No. 382 of 2013 Page 112

under clause Sixthly 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.  

70. There can be no dispute that every citizen of this country has the right to get

good  healthcare.   Every  citizen  can  expect  that  the  State  shall  make  best

endeavours for ensuring that the health of the citizen is not adversely affected.  By

now it is well settled by a catena of judgments of this Court that the “right to life”

envisaged in Article 21 of the Constitution of India is not merely a right to live an

animal existence.  This Court has repeatedly held that right to life means a right to

live with human dignity.  Life should be meaningful and worth living.  Life has

many shades.  Good health is the raison d’etre of a good life.  Without good health

             W.P. (C) No. 382 of 2013 Page 113

there cannot be a good life.  In the case of a minor girl child good health would

mean her  right  to  develop as  a  healthy  woman.   This  not  only  requires  good

physical health but also good mental health.  The girl child must be encouraged to

bloom into a healthy woman.  The girl child must not be deprived of her right of

choice.  The girl child must not be deprived of her right to study further.  When the

girl child is deprived of her right to study further, she is actually deprived of her

right to develop into a mature woman, who can earn independently and live as a

self sufficient independent woman.  In the modern age, when we talk of gender

equality, the girl  child must be given equal opportunity to develop like a male

child.  In fact, in my view, because of the patriarchal nature of our society, some

extra  benefit  must  be  showered  upon  the  girl  child  to  ensure  that  she  is  not

deprived of her right to life, which would include her right to grow and develop

physically, mentally  and economically  as  an independent  self  sufficient  female

adult.  

71. It is true that at times the State, because of paucity of funds, or other reasons

beyond its control, cannot live up to the expectations of the people.  At the same

time, it is not expected that the State should frame a law, which adversely affects

the health of a citizen, that too a minor girl child.  The State, under Article 15 of

the  Constitution,  is  in  fact,  empowered  to  make  laws  favouring  women.

Reservation  for  women is  envisaged under  Article  15  of  the  Constitution.   In

             W.P. (C) No. 382 of 2013 Page 114

Vishakha  v.  State  of  Rajasthan62,  this  Court  held  that  sexual  harassment  of

working women amounts to violation of the rights guaranteed by Articles 14, 15

and 23 of the Constitution.   

72. When a girl is compelled to marry before she attains the age of 18 years, her

health is put in serious jeopardy.  As is evident from various reports referred to

above,  girls  who were married before the age of  19 years  are  likely to  suffer

medical  and psychological  problems.  A 15 or  16 year old girl,  when forcibly

subjected to sexual intercourse by her “husband”, undergoes a trauma, which her

body and mind is not ready to face.  The girl child is also twice as more likely to

die in child birth than a grown up woman.  The least, that one would expect in

such a  situation,  is  that  the  State  would  not  take  the defence  of  tradition and

sanctity of marriage in respect of girl child, which would be totally violative of

Article 14, 15 and 21 of the Constitution.  Therefore, this Court is of the view that

Exception 2 to Section 375 IPC is arbitrary since it is violative of the principles

enshrined in Article 14, 15 and 21 of the Constitution   of India.  

73. Approaching this aspect  from another angle.   As is evident from various

reports filed in this case, child marriages are not restricted to girls aged above 15

years.  Even as per the National Plan of Action for Children, 2016 prepared by the

Ministry  of  Women  and  Child  Development,  Government  of  India,  30.3%

62 (1997) 6 SCC 241

             W.P. (C) No. 382 of 2013 Page 115

marriages i.e. almost 1 in every 3 marriage takes place in violation of the PCMA.

Many of these relate to child brides aged less than 15 years.  A girl may be married

when  she  is  3-4  years  or  may  be  10-11 years  old.   She  may  be  sent  to  her

matrimonial home on attaining the age of puberty, which may be well before she

attains the age of 15 years.  In such an eventuality, what is the reason for fixing the

magic figure of 15 years.  This figure had relevance when under the criminal law

and the marriage laws the age was similar.  In the year 1940, the age of consent

was 16 years, the age of marriage was 15 years and the age under the exception

was also 15 years; in 1975, the age of consent was 16 years, the age of marriage

was 18 years, but the age under the exception remained 15 years.  That may have

been  there  because  there  was  no  change  in  the  age  of  consent  under  Clause

Sixthly.  Now when the age of consent is changed to 18 years, the minimum age of

marriage is also 18 years and, therefore, fixing a lower age under Exception 2 is

totally irrational.  It strikes against the concept of equality.  It violates the right of

fair treatment of the girl child, who is unable to look after herself.  The magic

figure of 15 years is not based on any scientific evaluation, but is based on the

mere  fact  that  it  has  been  existing  for  a  long  time.   The  age  of  15  years  in

Exception 2 was fixed in the year 1940 when the minimum age for marriage was

also 15 and the age of consent under clause Sixthly was 16. In the present context

when the age for marriage has been fixed at 18 years and when the age of consent

             W.P. (C) No. 382 of 2013 Page 116

is also fixed at 18 years, keeping the age under Exception 2 at 15 years, cannot be

said to be right, just and fair.  In fact, it is arbitrary and oppressive to the girl child.    74. Law cannot be hidebound and static.  It has to evolve and change with the

needs  of  the  society.  Recognising  these  factors,  the  Parliament  increased  the

minimum age for marriage.  The Parliament also increased the minimum age of

consent but the inaction in raising the age in Exception 2 is by itself an arbitrary

non-exercise of power.  When the age was being raised in all other laws, the age

under  Exception  2  should  also  have  been  raised  to  bring  it  in  line  with  the

evolving laws especially the laws to protect women and the girl child aged below

18 years. Therefore, I have no hesitation in holding that the Exception 2, in so far

as it relates to the girl child below eighteen years, is unreasonable, unjust, unfair

and violative of the rights of the girl child.  To that extent the same is arbitrary and

liable to be set aside.

WHETHER  EXCEPTION  2  TO  SECTION  375  IPC  IS DISCRIMINATORY?

75. There can be no dispute that a law can be set aside if it is discriminatory.

Some elements of discrimination have already been dealt with while dealing with

the issue of arbitrariness.  However, there are certain other aspects which make

Exception 2 to Section 375 IPC in so far as it  deals with the girl child totally

discriminatory.  The law discriminates between a girl child aged less than 18 years,

             W.P. (C) No. 382 of 2013 Page 117

who may be educated and has sexual intercourse with her consent and a girl child

who may be married even before the age of 15 years, but her marriage has been

consummated  after  15  years  even  against  her  consent.   This  is  invidious

discrimination which is writ large.  The discrimination is between a consenting girl

child, who is almost an adult and non-consenting child bride.  To give an example,

if a girl aged 15 years is married off by her parents without her consent and the

marriage is consummated against her consent, then also this girl child cannot file a

criminal case against her husband.  The State is talking of the reality of the child

marriages.  What about the reality of the rights of the girl child?  Can this helpless,

underprivileged girl be deprived of her rights to say ‘yes’ or ‘no’ to marriage?  Can

she be deprived of her right to say ‘yes’ or ‘no’ to having sex with her husband,

even if she has consented for the marriage?  In my view, there is only one answer

to this and the answer must be a resounding “NO”.  While interpreting such a law

the interpretation which must be preferred is the one which protects the human

rights of the child, which protects the fundamental rights of the child, the one

which ensures the good health of the child and not the one which tries to say that

though  the  practice  is  “evil”  but  since  it  is  going  on  for  a  long  time,  such

“criminal” acts should be decriminalised.    

76. The State is entitled and empowered to fix the age of consent.  The State can

make reasonable classification but while making any classification it must show

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that the classification has been made with the object of achieving a certain end.

The  classification  must  have  a  reasonable  nexus  with  the  object  sought  to  be

achieved.  In this case the justification given by the State is only that it does not

want to punish those who consummate their marriage.  The stand of the State is

that keeping in view the sanctity attached to the institution of marriage,  it  has

decided to make a provision in the nature of Exception 2 to Section 375 IPC.  This

begs the question as to why in this exception the age has been fixed as 15 years

and not 18 years.  As pointed out earlier, a girl can legally consent to have sex only

after she attains the age of 18 years. She can legally enter into marriage only after

attaining the age of 18 years.  When a girl gets married below the age of 18 years,

the  persons  who  contract  such  a  marriage  or  abet  in  contracting  such  child

marriage,  commit  a  criminal  offence  and  are  liable  for  punishment  under  the

PCMA.  In view of this position there is no rationale for fixing the age at 15 years.

This age has no nexus with the object sought to be achieved viz., maintaining the

sanctity of marriage because by law such a marriage is not legal. It may be true

that  this  marriage  is  voidable  and  not  void  ab  initio  (except  in  the  State  of

Karnataka) but the fact remains that if the girl has got married before the age of 18

years, she has right to get her marriage annulled.  Irrespective of the fact that the

right of the girl child to get her marriage annulled, it is indisputable that a criminal

offence  has  been  committed  and  other  than  the  girl  child,  all  other  persons

             W.P. (C) No. 382 of 2013 Page 119

including  her  husband,  and  those  persons  who  were  involved  in  getting  her

married are guilty of having committed a criminal act.  In my opinion, when the

State on the one hand, has, by legislation, laid down that abetting child marriage is

a criminal offence, it cannot, on the other hand defend this classification of girls

below 18 years on the ground of sanctity of marriage because such classification

has no nexus with the object sought to be achieved.  Therefore, also Exception 2 in

so far as it relates to girls below 18 years is discriminatory and violative of Article

14 of the Constitution.

77. One  more  ground  for  holding  that  Exception  2  to  Section  375  IPC  is

discriminatory is that this is the only provision in various penal laws which gives

immunity to the husband.  The husband is not immune from prosecution as far as

other offences are concerned.  Therefore, if the husband beats a girl child and has

forcible  sexual  intercourse  with  her,  he  may  be  charged  for  offences  under

Sections 323, 324, 325 IPC etc. but he cannot be charged with rape.  This leads to

an anomalous and astounding situation where the husband can be charged with

lesser offences, but not with the more serious offence of rape.  As far as sexual

crimes against women are concerned, these are covered by Sections 354, 354A,

354B, 354C, 354D of the IPC.  These relate to assault or use of criminal force

against  a  woman  with  intent  to  outrage  her  modesty;  sexual  harassment  and

punishment for sexual harassment; assault or use of criminal force to woman with

             W.P. (C) No. 382 of 2013 Page 120

intent  to  disrobe;  voyeurism;  and stalking respectively.  There  is  no exception

clause giving immunity to the husband for such offences.  The Domestic Violence

Act will also apply in such cases and the husband does not get immunity.  There

are many other offences where the husband is either specifically liable or may be

one of the accused.  The husband is not given the immunity in any other penal

provision except in Exception 2 to Section 375 IPC.  It does not stand to reason

that only for the offence of rape the husband should be granted such an immunity

especially where the “victim wife” is aged below 18 years i.e. below the legal age

of  marriage  and is  also  not  legally  capable  of  giving consent  to  have  sexual

intercourse.   Exception  2 to  Section 375 IPC is,  therefore,  discriminatory  and

violative of Article 14 of the Constitution of India, on this count also.  

78. The discrimination is absolutely patent and, therefore, in my view, Exception

2, in so far as it relates to the girl child between 15 to 18 years is not only arbitrary

but also discriminatory, against the girl child.

LAW IN CONFLICT WITH POCSO

79. Another aspect of the matter is that the POSCO was enacted by Parliament

in  the  year  2012  and  it  came  into  force  on  14th  November,  2012.  Certain

amendments  were  made  by  Criminal  Law Amendment  Act  of  2013,  whereby

Section 42 and Section 42A, which have been enumerated above, were added.  It

             W.P. (C) No. 382 of 2013 Page 121

would be pertinent to note that these amendments in POCSO were brought by the

same Amendment Act by which Section 375, Section 376 and other sections of

IPC relating to crimes against women were amended. The definition of rape was

enlarged and the punishment under Section 375 IPC was made much more severe.

Section 42 of POCSO, as mentioned above, makes it clear that where an offence is

punishable, both under POCSO and also under IPC, then the offender, if found

guilty of such offence, is liable to be punished under that Act, which provides for

more  severe  punishment.   This  is  against  the  traditional  concept  of  criminal

jurisprudence that if two punishments are provided, then the benefit of the lower

punishment should be given to the offender.  The legislature knowingly introduced

Section 42 of POCSO to protect the interests of the child.  As the objects and

reasons  of  the  POCSO show, this  Act  was  enacted  as  a  special  provision  for

protection of children, with a view to ensure that children of tender age are not

abused during their childhood and youth.  These children were to be protected

from exploitation and given facilities to develop in a healthy manner.  When a girl

is married at the age of 15 years, it is not only her human right of choice, which is

violated.  She is also deprived of having an education; she is deprived of leading a

youthful  life.   Early marriage and consummation of  child  marriage affects  the

health of the girl child.  All these ill effects of early marriage have been recognised

by the Government of India in its own documents, referred to hereinabove.  

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80. Section 42A of POCSO has two parts.  The first part of the Section provides

that the Act is in addition to and not in derogation of any other law.  Therefore, the

provisions of POCSO are in addition to and not above any other law.  However,

the second part of Section 42A provides that in case of any inconsistency between

the provisions of POCSO and any other law, then it is the provisions of POCSO,

which  will  have  an  overriding  effect  to  the  extent  of  inconsistency.  POCSO

defines a child to be a person below the age of 18 years. Penetrative sexual assault

and aggravated  penetrative  sexual  assault  have  been  defined in  Section  3  and

Section 5 of POCSO.  Provisions of Section 3 and 5 are by and large similar to

Section 375 and Section 376 of IPC.  Section 3 of the POCSO is identical to the

opening portion of Section 375 of IPC whereas Section 5 of POCSO is similar to

Section 376(2) of  the IPC.   Exception 2 to  Section 375 of  IPC,  which makes

sexual intercourse or acts of consensual sex of a man with his own “wife” not

being under 15 years of  age,  not  an offence,  is  not  found in any provision of

POCSO.  Therefore, this is a major inconsistency between POCSO and IPC.  As

provided in Section 42A, in case of such an inconsistency, POCSO will prevail.

Moreover, POCSO is a special Act, dealing with the children whereas IPC is the

general criminal law.  Therefore, POCSO will prevail over IPC and Exception 2 in

so far as it relates to children, is inconsistent with POCSO.   

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IS THE COURT CREATING A NEW OFFENCE?

81. One of the doubts raised was if this Court strikes down, partially or fully,

Exception 2 to Section 375 IPC, is the Court creating a new offence.  There can be

no cavil of doubt that the Courts cannot create an offence.  However, there can be

no manner of doubt that by partly striking down Section 375 IPC, no new offence

is being created.  The offence already exists in the main part of Section 375 IPC as

well as in Section 3 and 5 of POCSO.  What has been done is only to read down

Exception 2 to Section 375 IPC to bring it in consonance with the Constitution and

POCSO.

82. In  this  behalf,  reference  may  be  made  to  some  English  decisions.   In

England, there was never any such statutory exception granting immunity to the

husband from the offence of marital rape.  However, Sir Mathew Hale, who was

Chief Justice of England for five years prior to his death in 1676, was credited

with having laid down the following principle:

“But the husband cannot  be guilty  of a rape committed by himself upon his  lawful  wife,  for  by  their  mutual  matrimonial  consent  and contract the wife hath given up herself in this kind unto her husband which she cannot retract.”

83. The aforesaid principle, commonly known as Hale’s principle, was recorded

in the History of the Pleas of the Crown63 and was followed in England for many

years.  Under Hale’s principle a husband could not be held guilty of raping his 63  (1736), Vol. 1, Ch. 58, P. 629

             W.P. (C) No. 382 of 2013 Page 124

wife.  This principle was based on the proposition that the wife gives up her body

to her husband at the time of marriage. Women, at that time, were considered to be

chattel. It was also presumed that on marriage, a woman had given her irrevocable

consent to have sexual intercourse with her husband.   

84. The  aforesaid  principle  was  followed  in  England  for  more  than  two

centuries.  For the first time in  Reg v.  Clarence64,  some doubts were raised by

Justice Wills with regard to this proposition.  In Rex v. Clarke65, Hale’s principle

was given the burial it deserved and it was held that the husband’s immunity as

expounded by Hale, no longer exists.  Dealing with the creation of new offence,

the House of Lords held as follows:

“The remaining and no less difficult question is whether, despite that view, this  is  an area where the court  should step aside to leave the matter to the Parliamentary process.  This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.”

85. In my view, as far as this case is concerned, this Court is not creating any

new offence but only removing what was unconstitutional and offensive.

THE PRIVACY DEBATE

86. Ms. Jayna Kothari, learned counsel for the Intervener, had raised the issue of

privacy and made reference to the judgment of this Court in the case of  Justice

64 (1888) 22 Q.B.D. 23

65 (1949) 2 All E.R. 448

             W.P. (C) No. 382 of 2013 Page 125

K.S. Puttaswamy (Retd.) & Anr. v. Union of India and Ors.66 to urge that the right

of privacy of the girl child is also violated by Exception 2 to Section 375 IPC.  I

have purposely not gone into this aspect of the matter because anything said or

urged in this behalf would affect any case being argued on “marital rape” even in

relation to “women over 18 years of age”.  In this case, the issue raised is only

with regard to the girl child and, therefore, I do not think it proper to deal with this

issue which may have wider ramifications especially when the case of girl child

can be decided without dealing with the issue of privacy.

RELIEF

87. Since  this  Court  has  not  dealt  with  the  wider  issue  of  “marital  rape”,

Exception 2 to Section 375 IPC should be read down to bring it within the four

corners of law and make it consistent with the Constitution of India.   

88. In view of the above discussion, I am clearly of the opinion that Exception 2

to Section 375 IPC in so far as it relates to a girl child below 18 years is liable to

be struck down on the following grounds:–  

(i) it is 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;

(ii) it  is  discriminatory  and  violative  of  Article  14  of  the

Constitution of India and; 66  (2017) 10 SCALE 1

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(iii) it  is inconsistent  with the provisions of POCSO, which must

prevail.  

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”.

It is, however, made clear that this judgment will have prospective effect.

89. It is also clarified that Section 198(6) of the Code 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.   

90. At the cost of repetition, it is reiterated that nothing said in this judgement

shall be taken to be an observation one way or the other with regard to the issue of

“marital rape”.   

91. Extremely valuable assistance was rendered to this Court by  Mr. Gaurav

Agarwal,  learned  counsel  appearing  for  the  petitioner  and  Ms.  Jayna  Kothari,

learned counsel appearing for the intervener and I place on record my appreciation

and gratitude for the same.

.............................J. (DEEPAK GUPTA)

New Delhi October 11, 2017

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