A

PROJECT WORK OF INDIAN PENAL CODE

FOR PARTIAL FULFILMENT OF

ODD SEMESTER INTERNAL EVALUATION

TITLE OF THE PAPER:

“…SEXUAL I TERCOURSE WITH MINOR IS RAPE : AN ANALYSIS

OF THE CASE INDEPENDENT THOUGHT V. UNION OF INDIA…”

Under the Supervision of Submitted by:

Avishek Raj Name-Sanol Sankalp
Assistant Professor Student ID-
ICFAI Law School LL.B. I Year19FLUCDDN01018
The ICFAI University, Dehradun The ICFAI Law School,
The ICFAI University, Dehradun

Submitted

To

The ICFAI University, Rajawala Road, Selaqui, Dehradun, 248011

(Uttarakhand)

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ACKNOWLEDGEMENT

In preparation of my assignment, I had to take the help and guidance of some respected persons,
who deserve my deepest gratitude. As the completion of this assignment gave me much pleasure,
I would like to show my gratitude Mr. Abhishek Raj sir, at ICFAI UNIVERSITY for giving me a
good guideline for assignment on principles of general contract. I would also like expand my
gratitude to all those who have directly and indirectly guided me in finalizing this project within
time frame.

Many people, especially my classmates have made valuable comment suggestions on my paper
which gave me an inspiration to improve the quality of the assignment.

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 Table of contents

INRODUCTION ………………………………………………………………….. 04

SOCIETAL CONSTRAINTS AND CONSEQUENCES OF EARLY MARRIAGE..06

INDEPENDENT THOUGHT V. UNION OF INDIA……………………… ……….07

CONCLUSION AND SUGGESTIONS………………………………………………….11

BIBLIOGRAPHY………………………………………………………………… ………11

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Introduction

Section 375 of IPC defines rape as a criminal offence and states that a man is said to commit
rape when he has sexual intercourse with a woman against her or without her consent or if she
is a minor. Under Section 375 of IPC, just penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape.

A man is said to commit rape when he has sexual intercourse with a women under any of the
following situations:

• Against her will.

• Without her consent.

• With her consent but the consent was obtained by putting her or any person close to her in
fear of death or of hurt.

 With her consent but the man knows that he is not her husband and the consent was given
because the woman believes that he is the man with whom she is or believes herself to be
lawfully married.

• With her consent but at the time of giving such consent the woman was unable to
understand the nature and consequences of her consent.

 With or without her consent, when the woman is below the age of 16 years.

A woman’s consent to sexual intercourse includes unequivocal voluntary agreement or willingness

to participate in the specific sexual act by words, gestures or any form of verbal or non-verbal

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communication. However, if a woman does not physically resist the act of penetration, it shall not
be regarded as consenting to the sexual activity.

There are certain exceptions to the section 375 of Indian Penal Code,1862 as follows:

• The act of sexual intercourse will not be considered rape when it is done by a man with his
own wife and the wife is not under fifteen years of age.

• A medical procedure or intervention shall also not constitute rape.

Here a man is given immunity from the crime of rape if he is the husband of the victim. Many
argue that there is nothing wrong with this. They say the IPC has sufficient provisions to deal
with assault and abuse. They even go to the extent of saying that the exception covers arranged
marriages due to the fact that it criminalises intercourse with brides under the age of fifteen.
Through this logic, they try to ignore the deep patriarchal undertones to this exemption.

Section 375 of the IPC is based on section 1 (1) of the Sexual Offence Act, 1959 of English Law
By the common law, it was stated that a man cannot rape a woman as by consenting to marriage
she has given herself to the man .But soon this exception was banned by R v R in 1991 . The
judges ruled that the court had left all common sense in order to state that the plaintiff had
consented to the act because she had married her husband. The exemption of marital rape is a
legal fiction in today’s age of rape laws.

Hence this exemption makes a woman the property of her husband. It assumes that after the
woman consents to marriage, she has consented to every action and decision her husband makes.
In today’s age of egalitarianism, we cannot let such rationale be a founding stone for a law.
While a woman who enters a marriage may make her body accessible to her husband, it is with
the understanding that she can deny sex whenever she wants. Many may still protect the
exemption by stating that it is hard to define where consent starts and ends in a relationship like
marriage and that it protects innocent husbands from vengeful wives. (Sankaran, 1978)

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To the former argument, we say that the law does not prevent a woman who is sexually familiar
with her rapist to press charges against him and thus the law should not prevent a wife from
pressing charges against her husband. It is up to the court to analyse the facts of the case and
infer whether there was consent or not. To the latter argument, it can be said that the exemption
is not enough to protect an innocent husband against a wife who wants to do harm. If she can’t
press rape charges, she will press other charges in order to defame him. This rationale is not
enough to prevent actual victims from seeking justice in the court of law (Sankaran, 1978).

SOCIETAL CONSTRAINTS AND CONSEQUENCES OF EARLY MARRIAGE

Marriage has been , since ancient times, one of the most important social institutions in all
societies. In India, marriage is regarded as a sacrosanct event in an individual‟s life.18 In India,
for every person who has a daughter, marrying off their daughter when they reach the
marriageable age is regarded as one of the religious duties. Wearing clothes that provoked the
men or stepping outdoor after sunset are the reasons held responsible for crimes against women.
Hence, it‟s the women who have been blamed. This view is to an extent altered after the
judgement.

Under the Hindu Marriage Act, 1955 certain conditions are laid down for a valid marriage under
Section 5 and Similarly, under the Muslim Law marriage is regarded as a contract. A Muslim
who is of sound mind and attained puberty is qualified to marry.

The Special Marriage Act, 1954, is meant for any person in India and Indian nationals abroad,
irrespective of the faith that the individual may profess. The Section 4(a) 20of the Act has
provisions identical to the Section 5(ii) of Hindu Marriage Act as conditions for solemnizing
marriage. Similarly, Section 27 lists identical provisions in respect to ground for divorce as in
Section 13 of the Hindu Marriage Act.

Marital rape is not only traumatic but also leads to a lot of physical and psychological damage as
well.

It degrades and humiliates the victim and leaves her helpless. Forced marriage and child
marriages are very much prevalent in our society. A forced marriage is one in which both the

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spouses marry each other without their free consent whereas a child marriage is one in which
both or any one of the parties to the marriage is below 18 years of age. These types of marriages
are associated with higher rate of domestic violence including marital rape.

In many countries, the concept of marital rape is not recognized and is something to be dealt with

privately. This belief holds true in India also. The Minister Of State for Home Affairs Haribhai
Parthibhai Chaudhary once said in April 2015 “The concept of marital rape, as understood
internationally, cannot be suitably applied in the Indian context due to various factors, including
levels of education, illiteracy, poverty myriad social customs and values, religious beliefs and the
mindset of the society to treat the marriage as sacrament"

The wife does not have authority over her own body, but the husband does. And likewise the
husband does not have authority over his own body, but the wife does. Do not deprive one
another except with consent for a time that you may give yourselves to fasting and prayer; and
come together again so that Satan does not tempt you because of your lack of self-control.The
religion of Christianity teaches that having sexual relations with someone other than the spouse
is adultery which is a sin whereas sex within marriage is a duty. This makes marital rape an
impossibility.

However, the ill effects of marital rape cannot be ignored. Here are some effects a marital rape
victim may have to live with-

 Anxiety, depression and stress leading to suicide.

 A number of bodily injuries to vaginal areas including bruising.
 Miscarriage, bladder infections, STDs and infertility.
 Long lasting effects like insomnia, eating disorders, sexual dysfunction, and negative self
image.

Independent Thought v. union of India

In this case, Independent Thought v. Union of India, the petitioner was Independent thought, a
registered society which has been working in the welfare of child rights, and the respondents were

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the Union of India and National Commission for Women.Section 375 of IPC defines rape and has
also a provision dealing with the age of consensual sex as 18. Exception 2 to Section 375 says that
a husband can have non-consensual sex with her wife who is between 15 and 18 years of age. The
issue raised before the apex court was to decide the legality and constitutionality of Exception 2
to Section 375 of IPC.

The division bench of the Supreme Court gave concurring opinions to decide the case in the favour
of petitioner. It read down the Exception 2 to Section 375 of IPC and cleared that anything in the
judgement shall not be taken into consideration with the issue of “marital rape”.

In this case, Independent Thought v. Union of India, the petitioner was Independent thought, a
registered society which has been working in the welfare of child rights, and the respondents were
the Union of India and National Commission for Women.Section 375 of IPC defines rape and has
also a provision dealing with the age of consensual sex as 18. Exception 2 to Section 375 says that
a husband can have non-consensual sex with her wife who is between 15 and 18 years of age. The
issue raised before the apex court was to decide the legality and constitutionality of Exception 2
to Section 375 of IPC.

The division bench of the Supreme Court gave concurring opinions to decide the case in the favour
of petitioner. It read down the Exception 2 to Section 375 of IPC and cleared that anything in the
judgement shall not be taken into consideration with the issue of “marital rape”.

Facts

In 2013, by the Criminal Law Amendment Act, the age of consent to sexual intercourse was
increased from 16 to 18 mentioned under Section 375 of the Indian Penal Code. But, there was an
exception clause to this Section i.e., under Exception 2, a husband can have non-consensual sex
with a girl child (i.e. below 18 years) if she is above 15 years. In 2012, the POCSO Act was passed
which also set the minimum age for the consensual sex as 18 years. Exception 2 was contradictory
to the Section 3 of the POCSO act which has criminalized penetrative sexual assault.

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 The petitioner, Independent Thought is a National Human Rights organization which was
registered on 06.08.2009. On 11.06.2013, the petitioner in public interest filed a writ petition
under Article 32 of the Constitution challenging the legality and constitutionality of Exception 2
as it was both arbitrary and discriminatory towards the girl child.

In February 2014, the Home Ministry under the United Progressive Alliance (UPA) government
filed a counter-affidavit which was also later adopted by the National Democratic Alliance
government, in support of the Exception 2.

Analysis of the Judgement

The Division Bench while deciding whether a husband commits the offence of rape if he has sexual
intercourse with her wife who is between 15-18 years of age, commented as follows:

 The Exception 2 of IPC creates an artificial distinction between a married girl child and an
unmarried girl child without any reasonable nexus. The artificial distinction is contrary to both
Article 15(3) and Article 21 of the Constitution. No other provision in penal laws gives any
immunity to the husband. It also violates the bodily integrity and reproductive choice of the girl
child and has no measures for trafficking of a girl child. Therefore, it is being arbitrary and
discriminatory hindering the best interest of the girl child.
 The parliament has increased both the age of marriage and age of consent from time to time.
Currently, a girl child is neither eligible to marry nor give a consent before 18 years. When age
has been raised in all the other laws then Exception 2 by keeping the age of consent for a wife 15
year, has become unreasonable, unjust, unfair and violative of the rights of the girl child.
Therefore, it is arbitrary and should be set aside.
 The Exception 2 should be read down as follows to make it consistent with the constitution:

“Sexual Intercourse or Sexual acts by a man with his own wife, the wife not being 18 years, is not
rape.”

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 The issue before the Court is only of marital rape of the girl who is below 18 years and not that
of above 18 years. So, the judgement should not be observed in any way for commenting on the
issue of "marital rape" of an adult girl.

Per Justice Madan B Lokur

1. Article 21 of the Constitution: Under Article 21 of the Constitution, a girl child has a
right to live with dignity which is violated by Exception 2 by destroying her bodily
integrity and reproductive choice.
2. Article 14 of the Constitution (Right to equality): A child is a child whether married or
unmarried or divorced or separated or widowed. The rationale of classification between a
married and unmarried child in Exception 2 has become non-existent, therefore, making
exception arbitrary, unreasonable and violative of the doctrine of equality.
3. Article 15 of the Constitution: Under Article 15(3), Parliament has powers to make
legislation for the welfare of child and women. POCSO was such a prerogative of Article
15(3) by the legislature. POCSO provisions have overriding effect over any other law.
There is an artificial distinction between rape of a married girl child and aggravated
penetrative Sexual Assault which is completely arbitrary and discriminatory.
4. To harmonise the system of law, Exception 2 to Section 375 of IPC will now be read as
stating that sexual intercourse with a wife who is not below 18 years is not a rape.

Per Justice Deepak Gupta (Concurring)

1. Fundamental Rights: It is the duty of the court to either strike down or read down the law
making it consistent with the constitution if any law violates the Fundamental Rights of
the citizens.
2. Article 14 of the Constitution: Exception 2 decriminalises the forceful sexual relation by
a husband with his wife between of 15-18 years, who is a girl child unable to look for
herself, therefore, it is arbitrary. Moreover, it is discriminatory as it is discriminating
between an educated girl child who is protected even if she has sexual intercourse
whereas, it doesn’t help a married girl between 15-18 years even if she is subjected to

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 have forceful sexual intercourse by her husband. Therefore, Exception 2 being
discriminatory and arbitrary is violative of Article 14 of the Constitution.
3. Article 21 of the Constitution: Right to life also includes right to live with human dignity.
A girl’s right to life also includes the right to develop physically, mentally and
economically as an independent self-sufficient female adult.
4. Article 15 of the Constitution: Due to the paucity of funds State should not form a law
negatively affecting its citizens that too a minor girl child. Relying on Vishaka v. State of
Rajasthan, it was said as follows:

A forceful sexual intercourse with a 15 or 16 years old girl child leads her to trauma which is
injurious to her body as well as her mind. Exception 2 is violative of Article 14, 15 and 21 of the
Constitution as it puts a girl’s both physical and mental health in serious jeopardy.

5. As Court has not dealt with the wider issue of “marital rape”, it should be read down as
that a husband having sexual intercourse or sexual activity with her wife is not
commencing the offence of rape.

Nothing in the judgement can be observed in any way on the issue of “marital rape.”

Conclusion

Independent Thought case has taken a major step to protect the girl child by criminalising the
sexual intercourse with a wife below 18 years. But, the Supreme Court had not laid down any
special provision for dealing with such cases where the interest of other child is also at stake. It
did not consider those cases where the husband is also a minor and would be as innocent as the
girl if have consensual sex with her. In India, cases of eloping and marriage are very prevalent, the
Apex Court's ignorance towards such cases just because they can be generalised under the child
marriage cases is against the interest of the boy child. The Court also tried to not comment on
"marital rape" issue where the girl is above 18 years by emphasising that “marital rape” is not the
issue before the court and judgement should not be observed in any way for the issue of "marital
rape". The reasoning court applied for concluding that Exception 2 is violative of Fundamental

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Rights was equally applicable to a girl above 18 years old whose right to dignity is injured by the
forceful sexual relation.

Reference :

 S.N.Mishra ,Indian penal code

 K.D.Gaur, Indian penal code

Webliography:

 https://www.google.com/amp/s/www.thehindu.com/news/national/sex-with-minor-
wife-is-rape-says-supreme-court
 https://www.google.com/amp/s/m.jagranjosh.com.

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