INDEPENDENT THOUGHT versus UNION OF INDIA & ANR.

INDEPENDENT THOUGHT versus UNION OF INDIA & ANR.

Exception 2 to Section 375 of the IPC, which immunizes husbands from the charge of rape for sexual intercourse with their wives aged between 15 and 18 years, is arbitrary, discriminatory, violative of Articles 14, 15, and 21 of the Constitution, and inconsistent with the Protection of Children from Sexual Offences (POCSO) Act. Exception 2 is read down such that sexual intercourse or acts by a man with his own wife, the wife not being under eighteen years of age, is not rape. Pro-child statutes including POCSO prevail in case of inconsistency. The judgment has prospective effect.

Parties
Petitioner: Independent Thought; Respondent: Union of India; Respondent: Anr.
Jurisdiction
India
Judgment Date
11 October 2017
Procedural Posture
Writ Petition (civil) No. 382 of 2013 / Final Judgment
Outcome
Exception 2 to Section 375 IPC read down to exclude girls under 18 years; judgment has prospective effect; Section 198(6) CrPC applies to prosecution.
Legal Topics
Rape, Marital Rape Exception, Child Marriage, Interpretation of Statutes, Primacy of Special Laws
Constitutional Law Criminal Law Child Rights Human Rights Rape Marital Rape Exception Child Marriage Interpretation of Statutes +1 more

Case Brief

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Parties

Independent Thought

Petitioner

Union of India

Respondent

Anr.

Respondent

Procedural Posture

Writ Petition (civil) No. 382 of 2013 / Final Judgment

Legal Issues

  1. 1 Whether sexual intercourse by a man with his wife aged between 15 and 18 years constitutes rape under Indian law
  2. 2 Whether Exception 2 to Section 375 IPC is unconstitutional or inconsistent with child protection statutes
  3. 3 Which provision prevails in the event of inconsistency between IPC and POCSO

Ratio Decidendi

Exception 2 to Section 375 of the IPC, which immunizes husbands from the charge of rape for sexual intercourse with their wives aged between 15 and 18 years, is arbitrary, discriminatory, violative of Articles 14, 15, and 21 of the Constitution, and inconsistent with the Protection of Children from Sexual Offences (POCSO) Act. Exception 2 is read down such that sexual intercourse or acts by a man with his own wife, the wife not being under eighteen years of age, is not rape. Pro-child statutes including POCSO prevail in case of inconsistency. The judgment has prospective effect.

Court Disposition

Exception 2 to Section 375 IPC read down to exclude girls under 18 years; judgment has prospective effect; Section 198(6) CrPC applies to prosecution.

Orders

  • Exception 2 to Section 375 IPC is to be read: 'Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.'
  • Judgment will have prospective effect.