An Analysis Of The Statutory Rape Dichotomy

The Supreme Court of India delivered a landmark judgment in the case of “Independent Thought Vs. Union of India (W.P. (c) No. 382 of 2013)” on the 11^th of October, 2017, whereby it read down Exception 2 to Section 375 of the Indian Penal Code, 1860 to be meaningfully read as “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years (instead of fifteen years as provided in the Indian Penal Code, 1860) of age, is not rape.” It was, however, careful in recording that it had not dealt with the larger issue of “marital rape” of adult women since that issue was not raised before it. The concurring judgment of the other Learned Judge while reading down the impugned provision chose to clarify that Section 198(6) of the Code will apply to cases of rape of “wives” below 18 years, and cognizance can be taken only in accordance with the provisions of Section 198(6) of the Code. The concurring judgment has also recorded that it was not touching upon the issue of “marital rape”.

While applauding the judgment which has waded through and analyzed various provisions of other contemporaneous pro-child statutes to reach the above conclusion albeit  has left certain critical questions pertaining to minor wife rape and adult wife rape, unanswered.

The challenge in the Writ Petition filed under Article 32 of the Constitution of India was to Exception 2 of Section 375 of IPC which provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. Poignantly, the age of consent has been prescribed in description sixth to Section 375 to mean 18 years. It was inter-alia contended that if a girl child was between 15 and 18 years of age and was married; her husband could have non-consensual sexual intercourse with her, without being penalized, in terms of Exception 2 to Section 375 of IPC.

The Hon’ble Supreme Court in an erudite and beautifully written judgment after analyzing the recommendations of the Law Commission of India reports, detailed report submitted by the Secretary General of the United Nations to the General Assembly called the “In-depth Study on all forms of violence against Women”, reports submitted to the Human Rights Council, Child Marriage Restraint Act, 1929, Protection of Human Rights Act, 1993, Protection of Women from Domestic Violence Act, 2005 (DV Act), Prohibition of Child Marriage Act, 2006 (PCMA), Protection of Children from Sexual Offences Act, 2012 (POCSO), Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act), various International Conventions and the Constitution of India come to a conclusion that Exception 2 to Section 375 of IPC must be read down and the age of 15 years mentioned therein must be read as 18 years.

The Hon’ble Supreme Court has captured the ethos and spirit of Articles 15(3) and 21 of the Constitution and held that an interpretation of a provision must be in keeping with the best interest of the girl child. The judgment has also reinforced the concept of bodily integrity and reproductive choice of the girl child.

The judgment has discussed in extenso the rigors of the POCSO Act which defines “penetrative sexual assault” and includes within its fold a girl or a boy child under the age of 18 years. Similarly the JJ Act also takes within its ambit all children who are below 18 years of age. Also, the PCMA has the minimum age of marriage as 18 years. The incongruity between these special legislations which are pro-child and IPC must be harmonized by giving primacy to the former over the latter in terms of Sections 5 and 41 of IPC. The Supreme Court has applied the harmonious and purposive construction to read down Exception 2 to Section 375 of IPC and held that sexual intercourse by a man with his own wife who is below 18 years is statutory rape.

Now comes the dichotomy. If the declaration of law by the Supreme Court is that sexual intercourse or sexual acts by a man with his own wife who is under 18 years of age is statutory rape then where is the need for applying Section 198 (6) of Cr.P.C. which provides “No Court shall take cognizance of an offence under Section 376 of the Indian Penal Code, where such offence consists of sexual inter-course by a man with his own wife, the wife being under eighteen years age, if more than one year has elapsed from the date of commission of the offence.” In cases of marital rape of a minor wife the rigors of the POCSO Act must apply with full vigor since law does not recognize marriage before the age of 18 years. The sequitor to reading down Exception 2 to Section 375 is that Section 198 (6) which carves out an exception to marital rape which is more than one year old, should have equally been read down. POCSO has no period of limitation for reporting an offence.

Further, the Hon’ble Supreme Court stopped short of declaring all child marriages to be void ab initio. The concurring judgment of Justice Deepak Gupta has made the judgment prospective and has further held that Section 198(6) of the Code would apply to cases of rape of wives below 18 years. However, the judgment of Justice Madan B. Lokur does not either mention the aspect of prospective overruling or that Section 198(6) of the Code would apply to cases of rape of wives below 18 years. The settled law is that a declaration of law is always retrospective unless specifically made prospective. It would be desirable if a summary of directions are drawn up in cases of judgments delivered by two or more Hon’ble judges.

I feel the time has come when we start talking about marital rape as it equally concerns the “bodily integrity and reproductive choice of an adult wife”.