- Saumya Maheshwari*
The Supreme Court has, in the case of Independent Thought v. Union of India, read down the second exception to Sec. 375 of the Indian Penal Code (definition of rape). Non-consensual sex between a man and his wife above the age of fifteen was earlier exempted from the definition of rape. Now, the minimum age for the same has been increased to 18. In effect, the court has criminalised all sexual intercourse between two people, if the woman involved is a minor, irrespective of their marital status, to bring some uniformity in the law as stated in the IPC and Protection of Children from Sexual Offences Act, 2012 (Sections 3 and 5). Complete uniformity still eludes us, though, given the gender-neutral nature of POCSO, and the gender-specific nature of Sec. 375 of the IPC.
For clarity on the effect of the judgment, refer to the table below.
In arriving at this conclusion, the Supreme Court has relied on India’s international legal obligations, such as holding the best interests of the child as paramount, as one of the many reasons why India should criminalise sexual intercourse between a man and his minor wife. The other reasons include the inconsistencies in the law as stated in POCSO and IPC, the incongruity of the law in allowing a minor wife to seek remedies for all kinds of violence other than rape, such as protection from physical, mental, economic, and verbal abuse under the Protection of Women from Domestic Violence Act, 2005, prosecution for cruelty against a married woman, outraging the modesty of a woman, voyeurism, and so on.
The line of argument, with respect to our international obligations, that runs through the judgement is as follows: India is a signatory to the UN Convention on the Rights of the Child, and, thus, should uphold the best interests of the child as a paramount consideration. As child marriage inevitably involves sex, and as a minor girl doesn’t have the capacity to consent to sex, sex with a minor is inherently exploitative and is, therefore, not in her best interests. Thus, a minor girl must be able to prosecute her husband for rape.
Non-recognition of the evolving capacities of adolescents
This argument results in the conflation of all marriages involving a minor girl as forced child marriages, resulting in forced sexual intercourse, unwanted pregnancy, and childbirth. Aside from the fact that the international legal jurisprudence opposes child marriage on similar but more nuanced reasons including early domesticity, the Court has failed to account for the plethora of marriages involving minor girls that are self-arranged (‘love’ marriages, in common parlance), and are increasingly becoming visible in the legal system.
This large chunk of early marriages seem to be missing from the imagination of the court even though lower courts have dealt with them over and over again and, ironically, most often in the context of statutory sexual assault. It is also pertinent that several high courts have noted the need to treat these marriages differently from forced child marriages, given the evolving capacities of adolescents.
Their position is also in consonance with the principles underlying the UNCRC. For example, General Comment No. 20 (2016) on the implementation of the rights of the child during adolescence, states that in view of the heightened capabilities of adolescents, a balance between respect for evolving capacities and appropriate levels of protection should be made, and any such decision must take into account several factors “including the level of risk involved, the potential for exploitation, understanding of adolescent development, recognition that competence and understanding do not necessarily develop equally across all fields at the same pace and recognition of individual experience and capacity.”
This general comment also calls for minimum age limits that are consistent with the evolving capacities of adolescents, and decriminalisation of consensual sexual activity between adolescents of similar ages.
Ironically, while repeatedly calling sexual intercourse with a minor girl exploitative, the court also underscores her right to choose. For instance, in paragraph 64 of his opinion, Lokur, J. states that “The discussion on the bodily integrity of a girl child and the reproductive choices available to her is important only to highlight that she cannot be treated as a commodity having no say over her body or someone who has no right to deny sexual intercourse to her husband.” Similarly, Gupta, J. states in paragraph 70 of his opinion that, “The girl child must be encouraged to bloom into a healthy woman. The girl child must not be deprived of her right of choice.” The anomaly is apparent, as the law as it stands today does not leave any room for a minor married girl to choose to have sex with her husband. Instead, her husband is now criminalized, guilty of an offence that carries a minimum sentence of 7 years.
Effect of the Judgment
Criminalisation of all sexual intercourse involving an adolescent wife, irrespective of her consent, is dangerous, even more so in the context of a society that heavily polices any expression of sexuality by women and girls. Given the realities of the legal system, young girls in forced child marriages do not have the necessary access to approach the legal system for redress. But often, parents of adolescent girls who elope to marry do. It is they who will now use Sec. 375 to police their daughters and criminalise her husband. So far, young couples hung onto Exception 2 for acquittals, for if they married, the husband could be acquitted of the charge of rape. That option is no longer available to them, or to a judge unwilling to incarcerate young men and boys in self-arranged/ love marriages. The outcome in a large number of such cases, where the young husband is incarcerated for several years, and the minor girl is sent to a shelter home, is certainly not in her best interests.
The various options before the court have been listed out in paragraph 105 of Justice Lokur’s opinion. Given interpretational constrains and the need to avoid judicial legislation, perhaps the court did not have any option but to toe the line of the Parliament on the issue of age of consent. However, apart from the refrain of voiding all child marriages, the court has done a disservice to young couples by refusing to even discuss the evolving capacities of adolescents, and the resulting complexity of the situation, criminalizing a vast number of young men in the process.
The opinions expressed in this article are the author's own.
*Saumya Maheshwari is a legal research assistant at Partners for Law in Development.
 Independent Thought v. Union of India, Writ Petition (Civil) No. 382 of 2013 (October 11, 2017).
 UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, available at: http://www.refworld.org/docid/3ae6b38f0.html [accessed 14 October 2017].
 Sec. 498A, Indian Penal Code, 1860.
 Sec. 354, Indian Penal Code, 1860.
 Sec. 354C, Indian Penal Code, 1860.
 Resolution nos. 68/148 of December 2013, 69/156 of December 2014, 71/175 of December 2016, and 35/16 of June 2017. A/HRC/35/L.26 notes that “child, early and forced marriage disproportionally affects girls who have received little or no formal education and is itself a significant obstacle to educational opportunities for girls and young women, in particular girls who are forced to drop out of school owing to marriage, pregnancy, childbirth and/or childcare responsibilities, and recognizing that educational opportunities are directly related to the empowerment of women and girls, their employment and economic opportunities and their active participation in economic, social and cultural development, governance and decision making.”
 While resolutions of the United Nations General Assembly on child, early, and forced marriage raise concerns about the gendered effects of child and early marriage, they do not call for criminalisation of all sexual contact involving a child.
 See Sh. Jitender Kumar Sharma v. State and Another, W.P. (Crl.) No.1003/2010 (High Court of Delhi), Court on its Own Motion (Lajja Devi) v. State, W.P. (Crl.) No.338/2008 (High Court of Delhi), Sunil Mahadev Patil v. The State of Maharashtra, B.A. No. 1036/2015 (High Court of Bombay).
 UN Committee on the Rights of the Child (CRC), General comment No. 20 (2016) on the implementation of the rights of the child during adolescence, 6 December 2016, CRC/C/GC/20, available at: http://www.refworld.org/docid/589dad3d4.html [accessed 14 October 2017].
 Geeta Ramaseshan, Control and Freedom: Women and the Age of Sexual Decisions, AALI (April 2012), available at http://aalilegal.org/wp-content/uploads/2016/01/Publications_Control&Freedom.pdf.
 Supra, note 12.
 Justice Lokur in ¶76, and Justice Gupta in ¶46. Currently, most child marriages are voidable at the option of the child party to the marriage under section 3 of the Prohibition of Child Marriage Act, 2006.