#GenderJustCourts — Sexual intercourse with a minor girl is rape: Independent Thought vs. Union of India
Tags: India, Gender Justice

#GenderJustCourts — Sexual intercourse with a minor girl is rape: Independent Thought vs. Union of India SAHR Follow Apr 28, 2018 · 5 min read

Written by Sanaya Patel

This post is part of a series that seeks to explore judgements relating to gender justice and equality in the Indian Courts. As a common law system, we know that it is the combination of legislation passed in parliament and interpretations made by judges that make up the laws that affect women and girls across India. We hope this series provides an insight into how past cases might impact future ones.

In 2017, The Supreme Court gave a landmark judgment that criminalized marital rape perpetrated against a minor wife, narrowing the scope of marital rape as an exception to the crime of rape. It held that sexual activity with a minor wife was an offence, whether or not she had consented to such act.

Background of the case

The petition was filed by Independent Thought, a society working in the area of child rights. The Petitioner challenged the constitutionality of S. 375 of the Indian Penal Code (IPC), which criminalises rape but has an exception clause that states that sexual intercourse of a man with his wife, being above 15 years of age, does not amount to rape. This means that a married minor woman, between 15 to 18 years of age, does not have any recourse in law if she is raped by her husband. This exception creates a discriminatory distinction between a married and an unmarried girl. In this case, the Supreme Court interpreted the exception to 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.” The effect is that all minor girls are now protected against rape as per the IPC, whether married or not.

Highlights of the case

The Court relied on several scientific reports, cases related to child marriage, and other legislations to demonstrate the arbitrary, discriminatory nature of the exception with respect to married minor girls. The Court held that:

The age of majority is 18, and this is the age of consent because the law recognises it as the age at which a person gains maturity, in mind and body. The IPC exception to the crime of rape is at odds with this established principle of majority, because it implies that it is okay to rape a minor, provided that she is married. The exception creates a distinction between married and unmarried minor girls. If a girl is unmarried and under 18, she is protected by the law because she cannot legally give consent to sexual activity. However, if she is married and between the age of 15 and 18, she is not protected. This is solely because she is married and sexual intercourse has been seen to be a natural consequence of marriage where the wishes of the woman with regard to sexual intercourse are deemed inconsequential. A distinction based on marital status is arbitrary and discriminatory. Here, the Court noted that other non-consensual, sexual acts committed against a minor wife are punishable by other laws, such as provisions related to sexual harassment in the IPC, and the provisions related to aggravated sexual assault in the Protection of Children from Sexual Offences (POCSO) Act 2012.

Finally, the Court looked at Article 14 and 21 of the Constitution. It referred to reports and case law to show that early marriage is detrimental to the life and liberty of the girl child. The Court noted that the right to maintain bodily integrity overrides the idea that a husband has full control over a wife’s body and can subject her to sexual intercourse without her willingness. It noted, particularly, that girls aged 15–19 are twice more likely than older women to die of early childbirth and pregnancy. The court recognised that the law as it stood denied a minor girl essential human rights to make choices with respect to reproduction and health. These are choices that are alive whether she is married or not.

Towards Gender Justice? Definitely!

Sexual intercourse with a minor girl by her husband is now a criminal offence under the IPC. This judgment advances gender justice because it rejects the idea that marriage allows a husband to exercise his will over his minor wife without her consent. It recognises the importance of the right to choose, the right to bodily autonomy, and the right to integrity of a minor girl. The judgment notes that every other Indian law accords protection to minor girls, save in the case of rape under penal law.

The concurring judgment pays special attention to equal treatment of girls and boys in a patriarchal society. It includes, within the ambit of Article 21 (right to life), the right to good health. It notes that good physical and mental health is vital for a girl to bloom into an independent, self sufficient woman. The judgment specifically notes that extra benefits may be accorded to a girl child, to ensure that she is not deprived of her right to life. With respect to protection against rape, this judgment ensures that there is no difference between minors based on marriage, and more importantly, that husbands cannot be granted immunity against punishment for rape by virtue of marriage to minor girls, unable to give their consent.

However, the Court goes out of its way to state that it is making no observation with regard to the issue of marital rape of an adult woman. It gives a minor girl the right to bodily integrity and to decline sexual intercourse with her husband but does not expand on this as a right for all persons, irrespective of age.

Implications of the case

In harmonising the law under the IPC with other penal provisions, the law related to sexual offences against minors is consistent. The case is important because it recognises the bodily integrity of a girl child and the reproductive choices available to her. Although the bench clearly refrained from commenting on marital rape, its words are indicative, “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.”

Sanaya Patel is a Research Associate at One Future Collective. Tweets @sunaya_p.