Independent Thought v. Union of India

Judges - Deepak Gupta&Madan B. Lokur

WP (C) 382/2013



On 11th September 2017, the Supreme Court increased the age of consent for sexual intercourse within marriages to 18. Before the ruling, sexual acts by a husband on his wife, where the wife was above 15 years of age, failed to constitute rape for the aim of criminal law. This led to a legal anomaly because the age of consent is eighteen years, both within the Indian penal code and various special statutes enacted for children, notably POCSO.

On 11th September 2017, the Court delivered two concurring opinions, raising the age of consent for marital cohabitation to 18 years.

Section 375 of the Indian penal code was amended by the criminal law Amendment Act, 2013 to boost the age of consent to sexual activity to 18. This brought the law in consonance with all other statutes where a child is recognised as an individual below the age of 18 (Juvenile Justice (Care and Protection of Children) Act, 2012, the Protection of kids from Sexual Offences Act, 2012, and Prohibition of child Marriage Act,2006). Further, under the Prohibition of kid Marriage Act, 2006, a marriage contracted between two parties where one among them is a minor, i.e. below the age of 18 just in case">just in case of women and 21 in case of boys, is said to be voidable. It can be nullified by the person who was a minor at the time of the marriage, within two years of achieving majority.

However, Exception 2 to Section 375, which creates an exception to the offence of rape in cases of forced sexual intercourse by a person with his own wife if she is of 15 years of age or above, has not been amended. This resulted in an anomalous situation where forced cohabitation by a husband with a minor wife between the ages of 15 and 18 is permitted.

Independent Thought, a Non-Governmental Organisation, filed a writ petition before the Supreme Court under Article 32 to declare the exception unconstitutional. Child Rights Trust, a non-governmental organisation working for prevention of child marriage, joined as an Intervenor and was also heard extensively.

The petition was listed for hearing before a Bench of Justices Madan B. Lokur and Deepak Gupta on 10.08.2017 on which date the Supreme Court sought recent data on the health and consequences status of girls married between the ages of 15-18 also because the number of child Marriage Prohibition Officers appointed under the Prohibition of kid Marriage Act, 2006. Consequently, on 28.08.2017, an application for Intervention was filed on behalf of the kid Rights Trust, a non-governmental organisation working to secure Every Right for each Child.

Independent Thought and Child Rights Trust argued that the classification between married and unmarried minor girls in punishing sexual violence has no rational nexus to the objectives of the Section. it's also contrary to the obligations of the State to safeguard the proper of the child under Article 21 as well as under International Conventions.

The Union of India first argued that it was for Parliament to rectify the anomaly created by the exception in Section 375. Secondly, the anomaly had been considered repeatedly by Parliament and a constructive thought process led to the conscious decision to retain the classification, bowing to social pressures and therefore the State’s reluctance to interfere in marital life.

On 12th October 2017, the two-judge bench, through two concurring opinions, read down Exception 2 to Section 375 IPC and raised the age of consent to 18 for the aim of the Exception. It also demanded legal reforms to forestall and address violations of girls’ rights due to child marriage.