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Khairatabad, Hyderabad, Telangana, 500004
Khairatabad, Hyderabad, Telangana, 500004

Vaishnavi Nirmal  | Manikchand Pahade Law College, Aurangabad | 26th February 2020 

Independent Thought vs. Union of India [Writ Petition (Civil) no. 382 of 2013]

Fact of case:

The petitioner is a National Human Rights organization registered in 2009 and has since been working in the area of child rights. The society provides procedural and hand-holding support to non-governmental organizations and also to government and multifaceted bodies in several States in India. It has also been involved in legal interposition, research and training on issues concerning children and their rights. The organization has filed a petition under Article 32 of the Constitution in public interest with a view to draw attention to the violation of the rights of girls who are married between the ages of 15 and 18 years.

According to the petitioner, the sexual intercourse regardless of the consent or otherwise, between a man and his child bride of age between 15 and 18 years amounts to rape. 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 physical 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.

Issues:

Whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape?

Judgement:

On considering these matter in detail the two judges, Justice Madan B Lokur and Justice Deepak Gupta have come with concurring but separate judgment. It says  that  Exception 2 to Sec 375 IPC in so far as it relates to  a girl child below 18 years is liable to struck down on the following grounds:-

  • It is arbitrary and violative of rights of girl child and not just or reasonable and therefore violative of Art 14, 15 and 21 of the Constitution of India.
  • It is inconsistent with the provisions of POSCO, which must prevail.

Therefore, Exception 2 to Sec 375 is read down as follows;

“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape”

However, it was clearly stated that the judgment will have only prospective effect.

Post Author: lexforti

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