Child Brides and the Capacity to Consent: A Comment on Independent Thought v Union of India

Rape is defined under Section 375 of the Indian Penal Code 1860 (IPC) to include certain non-consensual, sexual acts committed by a man against a woman. Where the woman is under the statutory age for sexual consent (18 years), the sexual acts are understood as rape regardless of the victim’s consent (‘statutory rape’). This provision recognises the vulnerability of children by creating the legal fiction that nobody younger than 18 years has the capacity for sexual consent. Exception 2 to this provision clarified that sexual acts between married couples were not covered by Section 375, unless the wife was below 15 years of age (‘the marital rape exemption’). A marriage involving a woman younger than 18 years is prohibited but voidable, which means that the minor can approach the Court to invalidate it till she is 20 years old; it otherwise continues as valid.

The petitioner argued that Exception 2 created an unconstitutional classification between wives under the age of 15, and those between 15 and 18 years of age (‘the classification’). But for this classification, all wives would be covered by the statutory rape provision. This was the limited issue before the Court, and the decision is emphatic that nothing in it should be extended to marital rape in general. The Court found in favour of the petitioner, holding that the marital rape exemption should only cover cases where the woman is 18 years or older.

The ruling is based on mainly three reasons. First, the Court found that the classification was in conflict with the philosophy underlying other statutes governing childhood, marriage and sexual relations. For instance, the Protection of Children from Sexual Offences Act 2012 (POCSO) and the statutory rape provision criminalise any sexual activity carried out with persons younger than 18 years. These provisions recognise the emotional and physical damage inflicted on those who are subject sexual acts while still sexually immature. The classification sent the conflicting message that this damage can be disregarded for married victims who are 15 years or older. Similarly, while the marriage of those under 18 years old (‘child marriage’) is prohibited, the classification effectively condoned child marriages, by not extending the label of ‘rape’ to sexual acts forced by husbands on some child brides. The Court held that it was in the interests of a purposive and harmonious construction, and in the best interests of children, to construe Exception 2 as if did not contain the impugned classification. This otherwise persuasive logic was pushed to an extreme in the concurring opinion. The concurring opinion suggests that a universal understanding of childhood pervades Indian law, as a result of which 18 years is regarded as the age of maturity – not just for sex and marriage, but also for contract law, property law and the law on voting. Surely, our understanding of childhood must be more context sensitive? More worryingly, if the Parliament reduced the statutory age for sexual consent, while still prohibiting the marriage of those under 18 years of age, would this become a constitutional issue? The current statutory age for sexual consent has been criticised for being too high. There is also evidence that young women who are just under 18 years old, often find their families accusing their boyfriends of statutory rape as ‘punishment’ for their independent sexual choices. A lower statutory age for sexual consent is arguably desirable.

Secondly, the Court found it arbitrary and discriminatory that the classification was based on marital status, which is unrelated to the numerous harms of child marriage. Further, the Court observed that the non-consensual, sexual acts committed by a husband against his underage wife are punishable under many other laws, even to the same extent as rape under the IPC (POCSO, Section 6). Thus, the classification created an ‘artificial distinction’, since sexually abused child brides could continue to complain about all relevant offences except rape on becoming 15 years old. For these reasons, it was held to violate the rights to equality and non-discrimination.

Finally, the Court recounted the many adverse effects of an early marriage on the dignity and well-being of the girl child. It held that the classification violated the right to life of those between 15 and 18 years of age.

The ruling makes an undeniable dent in the marital rape exemption. It is hoped that future courts dealing with the constitutionality of marital rape will similarly remain committed to safeguarding the bodily integrity of all women.

Author Biography: Arushi Garg is a Stipendiary Lecturer in Law at St Hilda’s College, University of Oxford, and a DPhil student in the Centre for Criminology. Her research focuses on conviction rates in rape cases in Delhi.

She can be contacted at: arushi.garg@law.ox.ac.uk. Tweets at @arushigarg90.