Background
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 to the violation of the rights of girls who are married between the ages of 15 and 18 years.

Facts
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.
 
Issues
The issue before us is limited but one of considerable public importance:

1. Whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape?
   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.
2. Whether exception 2 to Section 375 IPC is discriminatory?
    The discrimination is between a consenting girl child, who is almost an adult and non-consenting child bride.
3. Is the court cresting a new offence?
    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.

Arguments
During the course of oral submissions, three 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 several Members felt that marital rape has the potential of destroying the institution of marriage.

The 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.

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.

Judgement
The stand of the Union of India may be summarised as follows:-

1. “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.
2. 46% of women between the ages 18-29 years in India were married before the age of 18[1]. 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.
3. 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.

Commentary:
The result of the above situation 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, 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 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. This is extremely problematic, in the researcher’s point of view, and should be dealt with adequately.

Also, 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. 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”. Shockingly, even if this sexual intercourse is forcible and without the consent of the girl child, the husband is not liable for any offence.
This law is definitely not right, just and fair and is, therefore, arbitrary.

Finally, 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. 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 not be deprived of her right of choice.

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.

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.


End-Notes:
[1] As per National Family Health Survey-III