CASE ANALYSIS:

INDEPENDENT THOUGHT
vs
UNION OF INDIA
(2017) 10 SCC 800

BLUE PRINT OF THE CASE ANALYSIS

1.) FACTS OF THE CASE

2.) ISSUES RAISED AND ARGUMENTS OF BOTH THE PARTIES

3.) RULES WHICH ARE APPLICABLE TO THE CASE

4.) ANALYSIS / APPLICATION

5.) CONCLUSION
 FACTS OF THE CASE

 The petitioner is a society registered non-governmental organization, Independent

Thought, as on 6th august, 2009, The NGO deals in legal research, legal intervention and
training under child rights and the rights which concerns children. The NGO also bestows
hand-holding support, technical and legal support to many other non-governmental
organizations. It also aids governmental bodies in several states.
 The petitioner, Independent Thought approached the Honorable Supreme Court by filing
a writ petition W.P.(C) 382/2013 under Article 32 of Constitution in the interest of public
to emphasize the violation of the rights of the girl child who are married and who are
between 15-18 years old.
 The petitioner seeking the writ in declaration that Exception 2 to Section 375 of Indian
Penal Code, 18601 (hereinafter referred to as “IPC”) is violative of Articles 14, 15 and 21
of the constitution. As Exception 2 of Section 375 of IPC states that it is not rape if a man
has sexual intercourse with his wife who is above 15 years old and below the age of 18
years with or without her willingness or consent.
 The petitioner claimed that since Section 375 of IPC states that a consensual sexual
intercourse with a girl who is below 18 years will constitute rape and it will be irrelevant
and inconsequential that the girl is his wife or not. So it should not be considered in
Exception 2 to Section 375 of IPC that that man will get the immunity of rape merely
because she is his wife and he has the bodily right over her.
 The learned counsel for the petitioner stated that Exception 2 to Section 375 of IPC is not
only arbitrary but discriminatory to Article 15(3) which provides Parliament to make
special provisions for women and children but instead of uplifting them and making the
provisions, the girl child are placed at a great disadvantage which is contrary to vision
and beneficiaries offered in Article 15(3).
 Hence, according to petitioner the Exception to Section 375 of IPC was taking away the
right of bodily integrity of girl child. The legality and constitutionality of the Exception
was challenged as it was arbitrary as well as discriminatory in nature.
1
Indian Penal Code 1860, s 375.
 ISSUES RAISED

 ISSUE 1: Whether sexual intercourse between a man and his wife who is a girl of age
15-18 years is a rape?
 ISSUE 2: Whether Exception 2 to Section 375 of IPC is arbitrary?
 ISSUE 3: Whether Exception 2 to Section 375 of IPC is discriminatory?
 ISSUE 4: Is the court creating a new offence?

ARGUMENTS OF BOTH THE BOTH THE PARTIES

ISSUE 1: Whether sexual intercourse between a man and his wife who is a girl of age 15-18
years is a rape?

Arguments from Petitioner’s side:

 The petitioner claimed that since Section 375 of IPC states that a consensual sexual
intercourse with a girl who is below 18 years will constitute rape and it will be irrelevant
and inconsequential that the girl is his wife or not. So it should not be considered in
Exception 2 to Section 375 of IPC that that man will get the immunity of rape merely
because she is his wife and he has the bodily right over her.
 The learned counsel for the petitioner stated that Exception 2 to Section 375 of IPC is not
only arbitrary but discriminatory to Article 15(3) which provides Parliament to make
special provisions for women and children but instead of uplifting them and making the
provisions, the girl child are placed at a great disadvantage which is contrary to vision
and beneficiaries offered in Article 15(3).
 Merely because a girl child is married doesn’t mean that she has consented mentally or
physically for having sexual intercourse with her husband or indulging in any other
sexual activity or in conjugal relations with her husband.
 They also contended that merely something is going on from past as traditional practice
doesn’t mean that it will be applicable in current scenario and per se will be considered
illegal and a criminal offence.
  There is clear cut bias when a married girl between 15 to 18 years of age is having sexual
intercourse with or without her consent does not constitute rape, whereas a girl below the
age of 18 years having sexual intercourse with or without her consent can be constituted
as rape.
 The reasons established by the petitioner was that the girl who has been married and is
below 18 years of age does not have emotional, physical or mental stability, it will have
detrimental effects on the girl child which will not only include physical or mental well
being but also nutrition, education, employability and her general well being will also
have adverse effects.
 Under no circumstances married girl child below the age of 18 years has given consent
impliedly or expressly to indulge in sexual activities.
 The reason why the marriage age is minimized at the age of 18 years because a girl who
is below 18 years of age will have emotional effects and will also suffer from medical
concerns in future. Child marriage in majority of cases land to unwanted pregnancies at
such an early age due to which it results into neonatal deaths and ill health of both the
mother and her child.
 The learned counsel for the petitioner also emphasized that in the 84 th report of the Law
Commission of India2 stated that law related to rape concerning girl child below 18 years
has many anomalies. In 172nd report of law commission 3, they stated that an exception
should be added to the Exception of Section 375 of IPC to increase the age of 15 years to
16 years for sexual intercourse with her husband shall not be considered as sexual assault
if she is above 16 years of age. But the recommendation the LCI was not approved by the
Honorable Supreme Court.

ARGUMENTS FROM RESPONDENT’S SIDE:

 The justifications given by UOI against the arguments of the learned counsel for
petitioner were – UOI stated that educational and economical development of our country
in detrimental and is not improving. So they decided to retain the age of 15 years as

2
Law Commission, Rape and allied offences some questions of Substantive law, Procedure and Evidence (Law Com
No 84, 1980) para 2.18, 2.19 and 2.20.
3
Law Commission, Review of Rape laws (Law Com No 172, 2000)
 mentioned in Exception 2 to Section 375 of IPC so as to protect the rights of husband and
wife in criminalizing sexual activities between them.
 According to 3rd report of National Health Survey, 46% of women who are between the
age group of 18-29 years are below the age 18 years. It is also estimated that there are 23
million child brides in India. So it will be totally inappropriate and impractical to
criminalize the consummation of marriage linking with the serious and heinous offence
as rape.
 While considering the socio-economic conditions of India, providing punishment for
child marriage would be considered inappropriate as prescribed under Exception 2 to
Section 375 of IPC so as to retain the age of 15 years as it is being practiced for many
years as basic facts and social norms as well as traditional practice.
 In 172nd report of Law Commission of India, it was suggested by LCI that the age 15
years should be increased to 16 years, but after detailed consultations with various
stakeholders it was decided to retain the age of 15 years.
 If the marriage is constituted at the age of 15 years then it should not be the reason to
held the husband guilty of rape merely it was a traditional practice.
 By considering the social and old traditions and norms, it is the duty that the provisions
of law should be made according to the norms which did not affect the particular class or
society, so 15 years should be retained in Exception 2 to Section 375 of IPC.
 Besides the above made justifications made by UOI, they also asserted the provisions of
PCMA act, 2006 (Prohibition of Child Marriage Act, 2006) which states most important
legislation a male below 21 years of age and a female below 18 years of age shall
constitute their marriage as voidable at the instance of the person whose rights have been
violated.
 By referring to the Juvenile Justice (Care and Protection of Children) Act, 2015, it was
stated that the Constitution provides for remedy for the children who have not attained
the age of 18 years and are at imminent risk of danger.

ISSUE 2: Whether Exception 2 to Section 375 of IPC is arbitrary?

  Before answering whether Exception 2 to Section 375 of IPC is arbitrary or not, it is
necessary to know that whether a law or a rule or an act can be struck down merely
because that act or rule is arbitrary in nature. In case of Indira Gandhi v. Raj Narain, 4 the
court decided to strike down the clauses (4) and(5) in Article 329-A of the constitution
due to arbitrariness of it. These clauses were arbitrary in nature as it destroyed and
damaged the true meaning of rule of law as defined by A.V Dicey.
 When an act is arbitrary in nature it is obvious that it violates our constitution. Therefore
it is obvious to ascertain that when an Article of Constitution is violated than it is
arbitrary in nature and it is can be stuck down or declare it as unconstitutional.
 The arguments stated by UOI were whimsical and capricious in nature. Merely because
something is going on for a long time as a traditional practice doesn’t make it obvious
that it will be according to norms of the present society and will therefore be considered
as illegal and a criminal offence. So it is completely illogical to consider that the girl who
is marred has given consent to any sexual activity.
 The law needs to evolve and change when the society needs. When the age of girl are
fixed at 18 years in every other law than why only in Exception 2 to Section 375 of IPC it
is 15 years for married one. So it is unfair and unjust to the rights of the girl child hence it
is declared arbitrary in nature.

ISSUE 3: Whether Exception 2 to Section 375 of IPC is discriminatory?

 It is obvious that if any rule or act is discriminatory in nature than that particular law or
rule is violating our constitution and therefore it should be struck down or declared
unconstitutional.
 The Exception 2 to Section 375 of IPC discriminates between the girl child who is below
18 years of age and had sexual intercourse with or without her consent with a man and
the girl who has been married at the age of 15 years and had sexual intercourse with her
husband without her consent, merely because she is married the husband will get
immunity from the charges of rape.
 Considering Exception 2 to Section 375 of IPC, the husband has got immunity from the
charges of rape but in other provisions of law, the husband will be held liable for other
4
AIR 1975 SC 2299
 offences, such as if husband beats girl child and have sexual intercourse with her than he
will be liable under Sections 323, 324 and 325 of IPC, but he cannot be held guilty under
the offence of rape. This is the anomaly as the husband here will be guilty for lesser
offences.
 Therefore, this exception not only is arbitrary in nature but also discriminatory to the
rights of girl child.

ISSUE 4: Is the court creating a new offence?

One of the doubts raised during the pronouncement of judgment is whether by striking
down particular law or rule partially or fully, is the court creating a new offence. It does
not mean that the court cannot make a new offence, but by partly striking down the
Section 375 of IPC, there is no doubt that the court is creating a new offence. It was held
that the Exception 2 to Section 375 of IPC to be read down as it is unconstitutional and
offensive. The question of creating a new offence is cleared by the fact that there is
already an offence existed in Section 375 of IPC and in Sections 3 and 5 of POCSO act.
Therefore the court read down the Exception 2 to Section 375 of IPC and not created any
new offence.

RULES WHICH ARE APPLICABLE TO THE CASE

 Section 375 of IPC defines that a man who had sexual intercourse with a woman without
her consent or willingness to do and if all the seven essentials are matched which are
mentioned under the Section 375 as clauses, than the person is said to have commit rape.
The ‘sixthly’ clause under Section 375 clears out that if a man had sexual intercourse
with a girl who is below 18 years of age with or without her consent or willingness, than
that man has said to commit rape. This generally refers to ‘statutory rape’ where it
doesn’t matter whether the man who had done rape with girl who is below 18 years of
age is with or without her consent or willingness, such thing becomes irrelevant.
 Exception 2 to Section 375 of IPC states that a man will not be guilty of rape if he had
sexual intercourse with his wife who is above 15 years of age with or without her
consent. However, sexual intercourse with a girl who is below 15 years of age whether
 she is married or not and with or without her consent or willingness, is considered as rape
as stated under Section 375 of IPC. Therefore, regardless of willingness or consent of girl
child above 15 years of age who is married, the husband will get immunity from the
charges of rape and will not be guilty of rape merely she is married.
 The court also considered The Protection of Human Rights Act, 1993, where “human
rights” are defined under Section 2 (1) (d) which states right to liberty, freedom, life,
equality, dignity of the individual as guaranteed by the constitution. It is of no doubt that
if a girl child is forced for sexual intercourse with his husband than it will obvious be
considered as violation of rights of the girl child, it would amount to violation of right to
dignity, right to liberty and right to equality.
 In reference to The Protection of Women from Domestic Violence Act, 2005, as under
Section if the husband of the girl child causes harm to the well-being, or if it endangers to
life and security of the girl child whether mentally or physically or if he does sexual
abuse to the girl child, than the husband shall be guilty under the act for sexual abuse or
for any conduct which degrades or lower the dignity of the girl child.
 In reference to The Prohibition of Child Marriage Act, 2006, provides for the definition
of the “child”, who is a male if he is above 21 years of age and is a female if she is above
18 years of age. Child marriage is defined as the marriage in which one of the contracting
party is a child as defined. Under Section 3 of PCMA act, the child marriage can be
constituted as voidable at the instance of the party who is a child and is not above the age
prescribed under the PCMA act. Therefore, parliament has provided child marriage as an
offence if one of the contracting party is a child and under Section 9 of PCMA act if a
male marries a girls who is not above 18 years of age tan he will have to face rigorous
punishment of 2 years or fine or both, therefore it is not the matter of fact that a male is
child or not but if he marries a girl child than he will have to face consequences. If a
person performs, directs, abets, or conducts any child marriage than that person would be
held guilty under the Section 10 of PCMA act. Section 11 of PCMA act prohibits a
person to promote or permit to solemnize a child marriage. Section 13 of PCMA act
states that the court has the power or any jurisdictional judicial officer has a power to
impart injunction on the solemnization of child marriage. Finally, Section 14 of PCMA
act states that if any marriage constitutes after the injunction on it than that marriage
 would be considered as void by the court. In the state of Karnataka an amendment was
made where it was held that any marriage in which one of the contracting party is a minor
than that marriage would be considered as void ab initio.
 The court has also referred to The Protection of Children from Sexual Offences Act,
2012, states that the best interest of child should be secured. It is obligation on the part of
Government of India to secure the best interest of child as provided under Convention on
the Rights of the Child. Under Section 3 of POCSO act 5, it has been defined that if a
person commits “penetrative sexual assault” with a girl child than he is actually
committing the offence of “aggravated penetrative sexual assault” with the girl child who
is in relation is his wife. Under Section 5 of POCSO act, the “aggravated penetrative
sexual assault” is defined, but it has same constituents as rape under Section 375 of IPC,
it will also constitute similar type of rigorous punishments but the only difference would
be that the girl should not be married under the case of IPC and form of trial will change.
The court stated that it is immaterial that a person is guilty of rape under IPC or under
POCSO act, at the last the need to suffer similar type punishment, so it will hardly make
it any difference. Under Section 42-A of POCSO act, it is stated that if any other law is in
derogation of the POCSO act than the provisions of POCSO act will override that law as
POCSO act is special act as it is applicable to particular subject that is the protection of
rights of children for sexual offences.
 Under The Juvenile Justice (Care and Protection of Children) Act, 2015 6, it is stated that
the definition of “child” is a person who is not above the age of 18 years. The JJ act is
also relatable to Article 15(3) of the constitution which states that the parliament should
introduce special provisions for the benefit of children and women. The JJ act protects
those children who are at imminent risk or in danger before attaining the age of marriage.
 The court has also referred to the fundamental rights of the constitution which are Article
21, 14 and 15. Article 21 of the constitution states that it is the duty of state to maintain
bodily integrity of girl child as she has right to live with dignity, due to this exception the
girl child loses confidence in herself and has to face adverse effects of child marriage
which includes absence of emotional, physical or mental stability, it will have detrimental
effects on the girl child which will not only include physical or mental well being but also
5
The Protection of Children from Sexual Offences Act 2012, s 3 and 5.
6
The Juvenile Justice (Care and Protection of Children) Act 2015, s 2.
 nutrition, education, employability and her general well being will also have adverse
effects. Exception to clearly violates Article 21 as it shows that the husband has full
bodily control over his wife and can do sexual intercourse where consent of girl child is
immaterial The girl child has bodily integrity and right of reproductive choices. It is very
possibility that being subjected to sexual intercourse will result into unwanted
pregnancies which will curtail reproductive choices of girl child and will affects her
health as well as the of the child. It will eventually lead to neonatal deaths,
malnourishment and ill effects to the girl child.
By applying the rules sated under Article 14 of the constitution, the girl child has equal
rights to man when it comes to consenting and no other party will have any authority or
power over the other party.
Article 15 is relatable to POCSO act as Article 15(3) states that the parliament can make
special provisions for the betterment of the children and women.

ANALYSIS/APPLICATION

 As it is established under the Exception 2 to Section 375 of IPC that a person who had
sexual intercourse with his wife, the wife no t being below 15 years of age, will not be
held guilty of rape whether there was consent or not and therefore the husband will have
the immunity from the charges of rape. But when the petitioner came up with the petition,
it was stated that the girl child will not have right to bodily integrity but his husband will
have full control on the body of his wife. This was considered as whimsical and
capricious as it was violating the rights of the girl child under Articles 14, 15, and 21 of
the constitution. The exception was held arbitrary and discriminatory in nature as well as
it was violating the rights of the girl child. So it is obvious that if any rule or any acct is
violating any part of the constitution than that rule would be struck down or would
declared as unconstitutional.
 By applying the POCSO act it has been defined that a “child” is a person who is below 18
years of age. Under Section 3 of POCSO act, when a person does any sexual activity
which degrades the dignity of the girls child than that person would be liable for
“penetrative sexual assault”, but when a person is doing any sexual activity or sexual
 intercourse with a girl child who is below 18 years and is a wife of that person than that
person would be liable for “aggravated penetrative sexual assault” under Section 5 of
POCSO act. As mentioned in POCSO act under Section 5, the offence of “aggravated
sexual assault” is similar to rape definition under Section 375 of IPC. Here both the
offences have same constituents and similar type of punishment but the only difference is
in the procedure of trial. The court presented its argument by referring to POCSO act that
there will not be any material difference if a person is booked under IPC or POCSO act.
But after analyzing different provisions, the court decided that since the POCSO act is a
special law for the benefit of children and under IPC there are many provisions
mentioned and Exception 2 to Section 375 of IPC is one of the provisions mentioned in
the IPC. So it was held that POCSO act will prevail over any other law that is IPC. So
keeping in mind the POCSO act, the age described under Exception 2 to Section 375 of
IPC was discriminatory and arbitrary in nature as it was 15 years old and under Section 5
of POCSO act it is 18 years old. So the court finally upheld the case and decided to read
down the Exception 2 to Section 375 of IPC.
 While going through the case proceedings, the court came up with 5 options to deal with
one of them:-
(i) To let the discrepancy remain as it is as it does not seem as feasible option, as it
will have adverse effects on thousands of girl child.
(ii) To strike down the Exception 2 to Section 375 of IPC as unconstitutional, but this
option will also not be feasible as no such issue was raised during the proceedings
of the case.
(iii) To reduce the age of girl child for consenting to sexual intercourse form
18 years to 15 years of age, but this will not work as reducing the age is changing
some provisions under IPC and that power is with the parliament and not with the
court.
(iv) This is also not a feasible option to bring the POCSO act in compliance with
Exception 2 to Section 375 of IPC as it would entail not only amendment to
POCSO act but also to make other pro-child statutes.
(v) Last option left with the court was to read down the Exception 2 to Section 375 of
IPC as it will be in compliance with the POCSO act and other pro-child statutes.
This was the most holistic option available.

It is only through this judgment that the rights of many girl child can be preserved in
a harmonious way by imparting social justice to them.

As Justice Madan B. Lokur stated that whether defined as a street child, or a

surrendered child, or an abandoned child, or an adopted child, a child remains a child.
Similarly, whether it is a married child, or an unmarried child, or a divorced child, or
a separated child, or a widowed child, a child remains a child. So it will be very
unjust and unfair that a provision is different from other laws merely a girl child is
married and above 15 years.

Justice Deepak Gupta ruled out that the Exception 2 to Section 375 of IPC is violative
of fundamental rights of our constitution whose protection is the duty of the court to
maintain and provide justice to its citizens by striking down the rule or making some
changes according to it:-

 Article 14 of the constitution: the unequal nature of the exception that

distinguishes between treating girls and providing them justice of the same age on
the basis of their marital status.
 Article 15 is violated because of the reason that is a pessimistic statute adversely
impacting the life of a person and not being corrected due to lack of state funds.
 Article 21 is violated as this exception devastates the life of a person to live with
dignity and have a choice of bodily integrity over her body, it also includes right
to grow mentally and physically as a self-governing adult female who is above 18
years of age.

Therefore, the pronouncement of judgment elucidates our Honorable Supreme Court

as supreme law of land and puts man and woman on an equal footing without keeping
any party on the path of discrimination and it was reiterated that if any statute violates
our constitution or disparage or denigrates any of the provisions of law than that
 legislative provision must be declared as unconstitutional or should be struck down or
should be read down as in this case the court did.

CONCLUSION

Through this petition, the Independent Thought took a huge step by recognizing the rights of the
girl child by pronouncing this historic and landmark judgment which gave the girl child to live in
a better, free and safe environment. The court finally read down the Exception 2 to Section 375
of IPC which gave the immunity to the husband from the charges of rape and do sexual
intercourse with her wife with or without her consent being that the wife is above 15 years of
age, but the court read down this exception and now it will illegal if husband has sexual
intercourse with her wife who is above 15 years of age. By reading down this judgment, the
court secured many girl child lives and placed women at equal footing to men.