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Exception 2 under Section 375 of the Indian Penal Code, 1860 is violative of the basic Fundamental Rights of the girl child below the age of 18 years and above the age of 15 years. The operation of the said provision also results in an anomalous and conflicting state of affairs in comparison to the special statutes enacted by the Legislature for the benefit and welfare of women and children. The said Section under the IPC defines the offence of rape along with seven broadly mentioned clauses which expound the varied conditions under which an act might be termed as rape. The anomaly exists in the Exception 2 under clause 6 of the Section which asserts that if a man has sexual intercourse with a girl above 15 years of age who happens to be his wife, it cannot be termed as rape under the IPC regardless of the girl’s willingness or consent.

Violation of Fundamental Rights of a Female

Exception 2 under Section 375 is violative of Articles 14, 15 and 21 under the Constitution of India which embodies and bestows basic Fundamental Rights upon every individual in the country including minors. It is a well-known principle that Article 14 of the Constitution embodies the principle of non- discrimination and has to be read in conjunction with other articles like Article 21 which confers the ‘right to life’ and embodies several aspects of life. Article 14 and 15(3) are also complementary to each other as no law enacted for the welfare women and children can be termed as discriminatory.

Article 14 essentially states that there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is the same or in other words, its actions must not be arbitrary but must be based on some valid principle which itself must not be irrational or discriminatory. The exception in Section 375 of the IPC creates an artificial distinction formed on nomenclature between a married girl child and an unmarried girl child. Such arbitrary distinction neither has any rational nexus nor does it achieve any objective and ultimately results in rendering immunity to the husband of the victim. The Exception is also in direct contravention with the beneficial intent of Article 15(3) which enables the Parliament to make special provision for women and children. The said Exception is not only arbitrary but places the girl child at a disadvantage contrary to the ideology and requirement of the Article. The Exception is also in derogation of Article 21 of the Constitution which mandates that no person shall be deprived of his life and personal liberty except according to the procedure established by law. Life or personal liberty includes a right to live with human dignity. The Exception here, is contrary to the philosophy behind some statutes, the right to the bodily integrity of the girl child and her reproductive choice. The right to personal liberty under Article 21 is a valuable right, and hence, should not be lightly interpreted. The law when authorising any deprivation, the requirement for such needs to be reasonable and not arbitrary.

It is important to understand that the enjoyment of a quality life by the people is the essence of the guaranteed right under Article 21 of the Constitution. This very right to life provision also happens to include the right to health which the Exception seems to negate as the child wife in question is being violated of her bodily integrity and liberty. Any statutory provision that is in curtailment of such a right, must be held to be unconstitutional and ultra vires to Part III of the Constitution.

The existing anomaly between various statutes and Section 375(2) of the Indian Penal Code

The lawful age of consent for sexual intercourse is stated as 18 years under the IPC and sexual intercourse with a child below 18 years is considered as statutory rape as per law regardless of consent. The Exception under the IPC effectively legalizes statutory rape of a girl child by her husband. In the event of a husband causing physical harm to his wife, he is punishable under the appropriate offence regardless of his relationship with the victim, the question that arises is as to why there is a concession to be made in the event of rape only because the wife is above 15 years of age. It is quite commonly known that almost every statute in India recognizes that a girl below 18 years of age is a child and it is for this reason that the law penalizes sexual intercourse with a girl who is below 18 years of age. However, by virtue of Exception 2 to Section 375 of the IPC, if a girl child between 15 and 18 years of age is married, her husband can have non-consensual sexual intercourse with her, without being penalized under the IPC, only because she is married to him and for no other reason.

The 84th Report of the Law Commission of India (LCI) presented on 25th April, 1980, dealing with the rape of a girl child below the prescribed minimum age, took note of the anomalies in the law relating to rape, particularly in the context of the age of consent for sexual intercourse with a girl child. The view given was that since the Child Marriage Restraint Act, 1929 (now repealed) prohibited the marriage of a girl below 18 years of age, sexual intercourse with a girl child below 18 years of age should also be prohibited and the IPC should reflect that position thereby making sexual intercourse with a girl child below 18 years of age an offence.

Let us now take a look at a brief list of provisions under various statutes which the Exception is in direct contravention of. These statutes are explicit and in consonance with the definition of a child and also provide punishment for any harm caused.

The Protection of Human Rights Act, 1993 defines “human rights” in Section 2(d) as meaning the rights relating to life, liberty, equality and dignity of the individual (including a girl child) guaranteed by the Constitution or embodied in international covenants and enforceable by courts in India.

Section 3 of the Protection of Women from Domestic Violence Act, 2005, provides that if the husband of a girl child harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of his wife including by causing physical abuse and sexual abuse, he would be liable to have a protection order issued against him and pay compensation to his wife. Explanation I (ii) of Section 3 defines ‘sexual abuse’ as including any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of a woman.

For the purposes of the Prohibition of Child Marriage Act, 2006, a ‘child’ is a male who has not completed 21 years of age and a female who has not completed 18 years of age and a ‘child marriage’ means a marriage to which either contracting party is a child. Section 3 of the PCMA provides that a child marriage is voidable at the option of any one of the parties to the child marriage. Interestingly, and notwithstanding the fact that a child marriage is only voidable, Parliament has made a child marriage an offence and has provided punishments for contracting a child marriage (as per Sections 9, 10, 13 and 14 of the Act).

Section 3 of the Protection of Children from Sexual Offences Act, 2012 in clause (n) of Section 5 provides that if a person commits penetrative sexual assault with a child, then that person actually commits aggravated penetrative sexual assault if that person is related to the child, inter alia, through marriage.

Section 2(12) of the Juvenile Justice Act, 2015 defines a child as a person who has not completed 18 years of age. A child in need of care and protection is defined in Section 2(14) of the JJ Act and is required to be produced before a Child Welfare Committee constituted under Section 27 of the JJ Act.

It is obvious from a brief survey of the various statutes referred to above that a child is a person below 18 years of age who is entitled to the protection of her Fundamental and human rights. A child would be protected under these laws but at the same time the husband of the girl child would escape prosecution as a result of the immunity provided by the Exception, due to which justice cannot be dispensed equitably.

With respect to age as a concern, all statutes remain in consonance with one another. Section 3 of the Majority Act, 1875; Section 4(i) of the Guardians and Wards Act, 1890; Section 4(a) of the Hindu Minority and Guardianship Act, 1956 provide that a person shall attain the age of majority on completing the age of 18 years and not before. Under the Representation of the People Act, 1951 a person is entitled to vote only after he attains the age of 18 years and Section 11 of the Indian Contract Act, 1872 provides that only a person who has attained the age of majority and further expounds that contract entered into by a minor is treated to be a void contract.

The need for resolution of irregularities between POCSO and IPC

The anomaly that exists between the two statutes is that, under the said Exception of the IPC, the husband having sexual intercourse with a girl child is said to have not committed rape but is said to have committed aggravated penetrative sexual assault in terms of Section 5(n) of the Protection Of Children from Sexual Offences, 2012. It is pertinent to recognize that there is no real or material difference between the definition of rape in the terms of Section 375 of the IPC and penetrative sexual assault in the terms of Section 3 of the POCSO Act. The punishment to be provided to the wrongdoer for committing the offence of rape under Section 376(1) of the IPC is identical to that under Section 4 of the POCSO Act. Similarly the punishment for ‘aggravated’ rape under Section 376(2) of the IPC is the same as for aggravated penetrative sexual assault under Section 6 of the POCSO Act. The only real difference exists in the forum of trial.

It is necessary to refer to Section 42 A of the POCSO Act which elucidates that the said Act is not in derogation with any other laws and has overriding powers on any other law in the event of inconsistencies along with IPC Sections 5 and 41 which define special laws as established by the maxim “Generalia specialibus non derogant” and enunciate on certain laws which would not be affected by this Act. These two provisions are of considerable importance in resolving the controversy and conflict presented before us.

There have been several judgements by the Courts rendering rape as a horrifying issue. The Court stated that sexual violence apart from being a dehumanising act is an unlawful intrusion of the right to privacy and sanctity of a female. In Bodhisattwa Gautam v. Subhra Chakraborty it was observed by the Court that rape is a crime not only against a woman but against society. Reference to this case was further made in State of Haryana v. Janak Singh wherein, explicit mention was made to the resultant violation Article 21. In the same year, in State of Punjab v. Gurmit Singh, the Court stated that rape causes serious psychological as well as physical harm. These cases reflect the traumatic impact that rape could and does have on an adult victim. The plight faced by a child is unimaginable and yet it is not a criminal offence in terms of Exception 2 to Section 375 of the IPC but is an offence under the POCSO Act only. This anomaly needs to be resolved through intervention by the Court and needs to be brought in consonance with the POCSO Act.

Tejas Sateesha Hinder, Third Year, B.A. LLB (Hons.), National Law Institute University, Bhopal

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