The Supreme Court on Friday impleaded the National Commission for Women (NCW) as a party to a Writ challenging Exception 2 to Section 375 of the Indian Penal Code that permits intrusive sexual intercourse with a girl child aged between 15 to 18 years only on the ground that she has been married.
The Court was hearing a Writ Petition filed in 2013 by the NGO, Independent Thought, which has sought a declaration that Exception 2 to Section 375 is violative of Articles 14, 15 and 21 of the Constitution of India. The Writ demands that the age of consent for sexual relationship should be declared as 18 years, irrespective of the marital status of the girl child.
Criminal Law (Amendment) Act, 2013 increased the age of consent for sexual intercourse by a girl from 16 years to 18 years. However, Exception 2 to Section 375 IPC still retains the age of consent from a married girl as 15 years. As a result, there is a huge gap of 3 years in the age of consent for a married girl child, vis-a-vis an unmarried girl child.
It says that by virtue of provisions of Protection of Children from Sexual Offences Act, 2012, Parliament has recognized that a girl less than 18 years is a child and therefore, not in a physical and mental condition to take an informed decision as to sexual relationship. In such circumstances, there is no reason for Parliament to retain the age of 15 years in Exception 2 of Section 375 of IPC.
The Petition hence contends that Exception 2 to Section 375 IPC is discriminatory and violates Article 14 of the Constitution of India. It says that the provision classifies girl children below the age of 18 years into two categories: (i) namely those who are married, and (ii) those who are not married. A husband can have sexual intercourse with his wife, if she is above the age of 15 years irrespective of her consent. However, for all other purposes the age of consent is 18 years.
This classification has no rationale nexus with the object sought to be achieved, it submits. It brings to the notice of the Court the rationale for increasing the age of consent to 18 years in 2013, the same being that a girl below the age of 18 years is considered incapable of realizing the consequences of her consent; she is treated as a minor under law and, therefore, mentally and physically not mature enough to give a valid consent.
“If this is the object for increasing the age of consent to 18 years in 2013, then marriage of girl at the age of 15/16/17 years does not make the girl mature enough [mentally or physically] for the purpose of consent. Thus, the law is ex-facie discriminatory as the classification has no rational nexus with the object,” it contends.
The State on the other hand submitted before the Court that the exception had been retained keeping in mind the uneven economic and educational development in the country. They relied on the statistics provided by the National Family Health Survey-III, according to which 46% of women between the ages 18-29 years in India were married before the age of 18. The survey also estimated that there are 23 million child brides in the country. They hence felt that criminalizing the consummation of a marriage union with a serious offence such as rape would not be appropriate and practical.
These contentions were countered by the petitioners, averring that the Counter Affidavit did not explain how, by virtue of marriage at the age of 15 years [or 16 years or 17 years], the girl child would be physically and mentally fit to give consent.
The Petitioners contended in their written statement, “Parliament regards a girl child less than 18 years as incapable of giving consent, because she is a child/juvenile under law and is not physically / mentally in a position to understand the effects of consent. Therefore, simply because some marriages in India are being performed at an age lower than 18 years, it is not a justification to lower the age of consent to as low as 15 years. Parliament cannot permit the exploitation [in the name of marriage] of a girl child simply because some girls are married at an age less than 18 years.”
The impugned exception has further been alleged to violate Article 15 of the Constitution, as it is fails to protect the rights of a girl child, between 15 and 18 years. The exception, it submitted, ignores the fact that sexual intercourse at that young age can cause adverse health effects, not only to the girl, but also to the child.
The Petitioner also placed reliance on Article 2 of the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) which mandates that the States Parties condemn discrimination against women in all its forms.
Violation of the rights of the girl child under Article 21 of the Constitution has also been alleged, as “she no longer has a right to choose what she wishes to do with her body.”
The Court was apprised of the recommendations made by the 84th and 172nd Law Commissions. The 84th Law Commission Report had recommended that the age of consent for all girl children should be increased to 18 years, irrespective of marriage. The 172nd Report, made in 2000, suggested that the age of consent should be 16 years, but specifically opined that there should be no distinction in the age of consent, merely because the girl is married.
Read the Sumissions here.