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Showing contexts for: section 375 exception in Independent Thought vs Union Of India on 11 October, 2017Matching Fragments
Conclusion
105. On a complete assessment of the law and the documentary material, it appears that there are really five options before us: (i) To let the incongruity remain as it is – this does not seem a viable option to us, given that the lives of thousands of young girls are at stake; (ii) To strike down as unconstitutional Exception 2 to Section 375 of the IPC – in the present case W.P. (C) No. 382 of 2013 Page 68 this is also not a viable option since this relief was given up and no such issue was raised; (iii) To reduce the age of consent from 18 years to 15 years – this too is not a viable option and would ultimately be for Parliament to decide; (iv) To bring the POCSO Act in consonance with Exception 2 to Section 375 of the IPC – this is also not a viable option since it would require not only a retrograde amendment to the POCSO Act but also to several other pro-child statutes; (v) To read Exception 2 to Section 375 of the IPC in a purposive manner to make it in consonance with the POCSO Act, the spirit of other pro-child legislations and the human rights of a married girl child. Being purposive and harmonious constructionists, we are of opinion that this is the only pragmatic option available. Therefore, we are left with absolutely no other option but to harmonize the system of laws relating to children and require Exception 2 to Section 375 of the IPC to now 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.” It is only through this reading that the intent of social justice to the married girl child and the constitutional vision of the framers of our Constitution can be preserved and protected and perhaps given impetus.
7. The issue is whether a girl below 18 years who is otherwise unable to give consent can be presumed to have consented to have sex with her husband for all times to come and whether such presumption in the case of a girl child is unconscionable and violative of Articles 14, 16 and 21 of the Constitution of India. THE LEGISLATIVE BACKGROUND
8. The IPC was enacted in the year 1860 and the age given in Exception 2 of Section 375 has been changed from time to time. Till 1929, no minimum age of marriage was legally fixed. It was only after passing of the Child Marriage Restraint Act, 1929 (for short ‘the Restraint Act’) that the minimum age for marriage was fixed. The Restraint Act was repealed by the Prohibition of Child Marriage Act, 2006 (for short ‘the PCMA’). A chart showing the ages of consent, W.P. (C) No. 382 of 2013 Page 75 from time to time, under clause Sixthly of Section 375 IPC, in Exception 2 to Section 375 IPC and the Restraint Act/PCMA is as follows:
9. A perusal of the aforementioned chart clearly shows that when the IPC was originally enacted in the year 1860, the age of consent under clause Sixthly of Section 375 IPC and under Exception 2 of Section 375 IPC was 10 years. In this regard, the IPC was amended in 1891 and the age under both the provisions was raised to 12 years. In 1925, the age of consent was raised under clause Sixthly to 14 years but under the Exception 2 the age was retained at 13 years. In 1929, the Child Marriage Restraint Act was enacted. Section 3 of this Act provided that the W.P. (C) No. 382 of 2013 Page 76 minimum age of the girl child, to be eligible for marriage, was 14 years. In 1940, the IPC was again amended and the age of consent under clause Sixthly was raised to 16 years, but under Exception 2 to Section 375 IPC, the age was raised to 15 years and the minimum age of marriage under the Restraint Act was also 15 years. In 1978, the IPC was again amended and the age of consent was raised to 16 years but under Exception 2 to Section 375 IPC, no change was made. In 1978, the minimum age for marriage of the girl child was raised to 18 years but no consequential amendment was made in the IPC. In 2013, after the unfortunate “Nirbhaya” incident took place, the Parliament raised the age of consent under clause Sixthly to 18 years. The minimum age for marriage of a girl child remained at 18 years, but no change was made in Exception 2 to Section 375 IPC and a girl child who was married before the minimum age of marriage, could be subjected to sexual intercourse (forcible or otherwise) by her husband and if she was over 15 years of age, the husband could not be charged with any offence.
(vi) It is also necessary that the provisions of law should be in such a manner that it cannot affect a particular class of society. Retaining the age of 15 years in Exception 2 of Section 375 of IPC has been provided considering the social realities of the nation.”
50. Certain other facts may be noted which, though not strictly necessary for deciding the legal issues, are necessary to decide the background in which amendment to Section 375 IPC and other criminal laws were carried out. These facts clearly show that Parliament knowingly took a decision not to criminalize sexual activity between husband and wife. In the 84th Report of the Law Commission, it was recommended that the age of consent under clause Sixthly of Section 375 IPC, should be increased to 18 years and Exception 2 should be deleted. In the 172nd Report of the Law Commission, it was recommended that the age of consent under clause Sixthly should be retained at 16 years, but the Law Commission specifically opined that there should be no distinction on account of marriage of the girl child and the age in Exception 2 be raised from 15 to 16 years. The Justice Verma Committee did not make any recommendation to change the age of consent under clause Sixthly. However Parliament, while amending the IPC in the year 2014, in the wake of the “Nirbhaya” incident, decided to increase the W.P. (C) No. 382 of 2013 Page 101 age of consent to 18 years under clause Sixthly, but did not make any change in Exception 2 of Section 375 IPC.