The clause of the Indian Penal Code that allowed intercourse with married girls between 15 and 18 years was rendered irrelevant by POCSO Act before this decision.

InIndependent Thought v. Union of India, a division bench of the Supreme Court has read down exception 2 to section 375, Indian Penal Code (IPC), holding that sexual intercourse by a man with his minor wife would be rape. While the Supreme Court categorically refused to go into the legality of marital rape of adult women, it held that the categorisation of minor girls into ‘married’ and ‘unmarried’ was arbitrary, discriminatory, and contrary to the best interest of children.

The Supreme Court said that there appeared to be no reasonable discernable objective of the classification, and as such, it was violative of the right to equality under Article 14 of the Constitution. Additionally, it was noted that the exception under the IPC was both retrograde, and out of tune with other pro-child legislations such as the Prohibition of Child Marriage Act, 2006, and the Protection of Children from Sexual Offences Act, 2012.

Observing that the distinction between rape under Section 375, IPC and aggravated penetrative sexual assault under the POCSO Act, was merely notional and linguistic and not real, the Supreme Court held that the POCSO Act would override based on Section 42-A.

The Supreme Court held that the Exception should be read down as: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years, is not rape”.

Three key contentions were made by the Union of India. First, that by virtue of marriage, the girl consented to sexual intercourse with her husband. This was rejected by the court, which held “there is no question of a girl child giving express or implied consent for sexual intercourse” based on the statutory age of consent.

The second and third contentions were, similarly, rejected, holding that merely because child marriages have been taking place is no reason to validate such a harmful practice, and that reading down the exemption would not lead to a breakdown of the institution of marriage.

In practice, Exception 2 under the IPC in so far as it concerned married girls between 15 and 18 years had been rendered irrelevant by the POCSO Act before this decision.

Empirical studies on judgments of special courts under the POCSO Act in five states by CCL-NLSIU revealed that the exception under the IPC was not pressed into argument by the defence in any case. POCSO provisions were and continue to be applied by the police even though the accused claimed to be married to the victim.

CCL’s studies revealed that cases in which the victim and the accused are “married” or in a “romantic” relationship constitute more than 20 per cent of cases being decided by the courts and nearly always end in acquittal.

Since the POCSO Act does not recognise as permissible any form of sexual contact between children or with a child, judges have preferred to acquit if the victims turn hostile, victim is pregnant and is married to the accused or there is an offer to marry, there is absence of resistance on the part of the victim or force on the part of the accused, or if the victim admits that she loves the accused and willingly married him.

Special courts did not go into aspects such as the age difference between the parties, validity of the marriage, or whether the victim was groomed by the accused. Such cases are also flooding the juvenile justice system where a boy below 18 years is invariably charged under the POCSO Act for eloping with his girlfriend and can be potentially be tried as an adult if he is above 16 years and is alleged to have committed penetrative or aggravated penetrative sexual assault.

Importantly, Justice Lokur’s reference to observations of the Supreme Court in Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1 that “legislations with pronounced “protective discrimination” aims…potentially serve as double-edged swords” and that such legislations “should not be only assessed on its proposed aims but rather on the implications and the effects” would apply in equal measure to the POCSO Act.

An absolute age of consent ends up criminalising some children and violating their rights to dignity and bodily integrity and best interests, just like the marital rape exception. This is compounded by the mandatory reporting requirement under the POCSO Act, which not only affects the access of adolescent girls to medical treatment and services, but also renders them extremely vulnerable to unsafe abortions among other things. While this aspect of the law was outside the purview of the petition in Independent Thought, it is an issue that deserves serious consideration of the central government and possibly the judiciary in a separate petition.

Swagata Raha & Shraddha Chaudhary are Legal Researchers at the Centre for Child and the Law, National Law School of India University, Bangalore. Opinions expressed are personal.

Also read: The court has declared that a marital bedroom is not an inviolable space, but questions remain

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