Author Details :-

Yashasvi
BA LLB 5^th sem PU,chandigarh

Case Background

Case name: Independent Thought vs. Union of India^[1] (Writ Petition Civil No. 382 of 2013)

Independent Thought vs. Union of India (Writ Petition (Civil) No. 382 of 2013)) is a milestone case in family-run law regarding child marriage and on the legality of marital rape involving minor within the legal framework in India. The litigation has been initiated by the petitioner, an organization called Independent Thought, a NGO working for the welfare of women and children. The union of India was the prime respondent here, herein providing rationale behind the aforementioned section and defending its necessity in the society. The organization challenged the constitutionality of Exception 2 to Section 375 IPC. §375 of IPC defines the term rape as well as conditions which form the act of rape .the exception under this section acts as a certain shield to the married men, then the man can commit sexual assault or sexually abuse his wife or have sex under circumstances where she’s not willing or consenting voluntarily, but if the said victim to the sexual assault is aged within the years of 15 and 18 years old and the perpetrator is legally married to her, the act would not be considered as rape .This exception creates a special case of excusing what would have been considered as statutory rape under any other circumstances Independent Thought challenged the exception contending that it violates the constitutional rights of women under Article 32 and more over is against the principles laid down article 14,15,21. The petitioner challenged the exception as it created an arbitrary distinction between married and unmarried girls. Moreover under article 15(3) of the constitution provides state to create special opportunities for women and children and this exception is against that.

Issues:

1. Whether the sexual activity between a male and his minor wife constitutes as rape ?
2. Whether the exception under IPC section 375(2) is valid?
3. Whether the exception is discriminatory in nature?
4. Does striking down the exception give rise to a new offence?

Relevant legal provisions.

The case raised a number of significant legal and social concerns, including:

Child Marriage Despite being illegal under the Prohibition of Child Marriage Act (PCMA), 2006, in many areas of India child marriage is still common. The case shed light over the social realities of the society despite enacting various laws and statues. Under the PCMA act, a child is a female aged below 18 years of age and a male under the age of 21. This act also provides for rendering a marriage between two minors as voidable if a party wants to under §3. Anyone who helps or aid in such a marriage under §10. §11 prohibits providing any encouragement to any such marriage. §13 empowers the judicial officer of appropriate jurisdiction to issue injunction to stop solemnization of such marriages.

According to the Indian government, marital rape is not considered a crime even if the victim wife is aged above 18. India is a Signature of various International Conventions like that CRC (Convention on The Rights Of the Child) which obligates to save as well protect children from all the forms of Sexual exploitation and abuse. This exception was seen to directly contradict these international commitments.

Judicial Proceedings

The petitioners argued that the reports and recommendations of the Law Commission of India – the first report was the 84th report and the one in 1999, ie 172nd Report – had pointed out these gaps and recommended to amend the IPC for stronger protection of children.

The Union of India, through the Respondents, supported the necessity of retention of the exception .They defended that if such then argued that banning any type of intercourse between married individuals, even if one of the parties was minor, would encroach on sanctity of the marriage and also could produce unintended legal consequences within real marriages.

Significance.

This provision, which dates from the Indian Penal Code of 1860 and exempts sexual intercourse between a man and his wife when she is under eighteen years of age from the definition of rape, was set to be considered for its constitutional validity in order “to bring Indian law into synch with international standards that ban child marriage,’” according to a February 2011 article by the Indian magazine Frontline. It highlighted the need for a common legal framework safeguarding all children from sexual violence and exploitation – irrespective of whether they were married or not.

Simply because the Independent Thought or Union of India case was legally important in its attempt to sensure that minor girls from being deprived of rights equal to those granted to adult citizens and is the one who suffered exploitation by use ofso-called exception-legal-sanction could, is no justification. This was a case requiring interpretation by the judiciary to uphold the very principles of equality, non-discrimination and personal liberty inscribed in our Constitution.

Legal Principles

From the legal perspective, the relevant principles are as follows:

1. Constitutional rights and child protection: Article 15(3) of the Indian Constitution provides that the State can make special provisions for children. It is also to be mentioned that the right to life and personal liberty are protected by Article 21 of the Constitution, which supports the claims of the minor to privacy and health care.

2. Doctrine of ultra vires : the law has no effect if it is inconsistent or goes beyond the provisions of the Constitution.

3. International conventions: the fact that India is committed to the International Convention, which involves the protection and support for children.

4. Principles of bodily integrity and reproductive rights.

Court Rulings.

The Supreme Court termed Exception 2 to Section 375 of the IPC unconstitutional and made marital rapes of girls within the age group of 15 to 18 an offence under the IPC. This was somewhat emphasized by the Court, as observations were made to that effect:

1. Constitutional Rights Of the Girl Child – The exception was held by the Court to be violative of constitutional rights of the girl child under Articles 14, 15(3), and 21.

2. In confirmation International Obligations: The exception is inconsistent with the country’s international obligations, type of as well its commitment to establish certain norms under the CRC.

3. Protection of child rights: The Court held that irrespective of the marital status of a girl child, her rights, as well as bodily integrity need to be protected.

Analysis and Implications

Implications: This is a landmark judgment which has several important ramifications.

• Protecting Of Child Rights: The supreme court has secured the child rights by saying that irrespective of the marital status of a girl, when she is below 18 years of age, it will be considered rape if she indulges in sexual intercourse in any way.

• Effects on Marital Rape Discourse: Although the judgement did not address marital rape, provided for women above 18, it may trigger discussions and further legal battles over marital rape in India.

• Legal Consistency: The ruling harmonizes many existing child welfare laws and regulations, making it a much more consolidated means of enforcing the protection of minors.

• Social and Cultural Impact: The judgment has far reaching social and cultural effect questioning entrenched cultural traditions of child marriage and marital rights, heralding a movement towards more substantial acknowledgment of child rights and gender equality.

Conclusion

This article provides an overview of the very important judgment of Independent Thought vs. Union of India in the field of child rights, constitutional law and that too in India. The Supreme Court by declaring Exception 2 to Section 375 IPC as unconstitutional has indeed provided a step in the right direction with respect to prevention of sexual abuse against minors and protection of their constitutional rights. This judgement will not only enhance the legal environment for child protection in India but also act as a significant yardstick for future legal and societal changes on child marriage and marital rape.

1. Independent Thought v. Union of India, Writ Petition (Civil) No. 382 of 2013 (2017 ↑