2017 (10) TMI 1602 - SC - Indian Laws

Constitutional Validity of Exception 2 to Section 375 of the Indian Penal Code, 1860 (the IPC) - Rape - whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape? - HELD THAT - 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. It is opined 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; (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. 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.

Issues Involved:
1. Whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape?
2. The artificial distinction between a married girl child and an unmarried girl child.
3. The constitutionality of Exception 2 to Section 375 of the IPC.
4. The impact of child marriage on the girl child's health and rights.
5. The inconsistency between the IPC and the POCSO Act.
6. The role of the judiciary in interpreting laws vis-à-vis legislative intent.

Issue-wise Detailed Analysis:

1. Whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape?
The judgment addresses whether sexual intercourse with a girl below 18 years of age, even if she is married, constitutes rape. Exception 2 to Section 375 of the IPC states it does not, but the court opined that this exception creates an unnecessary and artificial distinction between a married and unmarried girl child, which is arbitrary and discriminatory. The court emphasized that this distinction is contrary to Article 15(3) and Article 21 of the Constitution and international conventions.

2. The artificial distinction between a married girl child and an unmarried girl child:
The court found that the artificial distinction between a married girl child and an unmarried girl child has no rational nexus with any objective and is arbitrary and discriminatory. This distinction is not in the best interest of the girl child and contradicts the philosophy behind statutes protecting bodily integrity and reproductive choice. The court noted that this distinction turns a blind eye to the trafficking of girl children and should be discouraged.

3. The constitutionality of Exception 2 to Section 375 of the IPC:
The court held that Exception 2 to Section 375 of the IPC is unconstitutional as it is arbitrary, discriminatory, and violates Articles 14, 15, and 21 of the Constitution. The court emphasized that legislation intended for affirmative action in respect of a girl child must be liberally construed and interpreted to override any other legislation that restricts the benefits available to a girl child.

4. The impact of child marriage on the girl child's health and rights:
The court highlighted the adverse effects of child marriage on the physical and mental health of the girl child, including early pregnancy, maternal and neonatal mortality, and educational setbacks. Reports and studies presented to the court indicated that child marriage leads to severe health risks, social isolation, and psychological trauma for the girl child. The court noted that child marriage is a violation of human rights and an obstacle to the development of young people.

5. The inconsistency between the IPC and the POCSO Act:
The court pointed out the inconsistency between the IPC and the POCSO Act. While the IPC decriminalizes marital rape of a girl child between 15 and 18 years of age, the POCSO Act criminalizes penetrative sexual assault on a child below 18 years of age. The court held that the provisions of the POCSO Act should override the IPC in case of any inconsistency, as the POCSO Act is a special law intended to protect children.

6. The role of the judiciary in interpreting laws vis-à-vis legislative intent:
The court emphasized that it is the judiciary's duty to interpret laws in a manner that protects the fundamental rights of citizens, especially vulnerable groups like children. The court noted that while it must show deference to legislative intent, it cannot ignore laws that are arbitrary, discriminatory, or violate fundamental rights. The court concluded that Exception 2 to Section 375 of the IPC must be read down to align with the POCSO Act and the Constitution.

Conclusion:
The court held that Exception 2 to Section 375 of the IPC, in so far as it relates to a girl child below 18 years, is unconstitutional. The judgment was prospective, and the court clarified that it did not address the broader issue of marital rape of adult women. The court's decision emphasized the need to protect the rights and health of girl children and harmonize conflicting laws to ensure justice and equality.

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