Independent Thought Vs Union of India & Anr

May17,2020 #Union of India
marriage child law insider

The Case Brief

Independent Thought


Union of India & Anr.

Petitioner- Independent Thought

Respondent-Union of India & Anr.

Cases Referred-

  • Seema(Smt.) v/s. Ashwani Kumar, (2006) 2 SCC 578.
  • Sri Mahadeb Jiew v/s. Dr.B.B.Sen  AIR 1951 CAL 563.
  • Government of A.P. v/s. P.B.Vijayakumar (1995) 4 SCC 520.
  • Yusuf Abdul Aziz v/s. State of Bombay 1954 SCR 930.
  • Cyril Britto v/s. Union of India AIR 2003 Ker 259.
  • Shrikrishna Eknath Godbole v/s. Union of India PIL No. 166/2016.
  • State of Maharashtra v/s. Madhukar Narayan Mardikar (1991) 1 SCC 57.
  • Suchita Srivastava v/s. Chandigarh Adminstration (2009) 9 SCC 1.
  • Selvi v/s. State of Karnataka SCC 263.
  • Ritesh Sinha v/s. State of Uttar Pradesh (2013) 2 SCC 357.
  • Devika Biswas v/s. Union of India (2016) 10 SCC 726.
  • State of Karnataka v/s. Krishnappa (2000) 4 SCC 75.
  • Bodhisattwa Gautam v/s. Subhra Chakraborty (1996) 1 SCC 490.
  • State of Punjab v/s. Gurmit Singh (1996) 2 SCC 384.
  • State of Haryana v/s. Janak Singh (2013) 9 SCC 431.
  • C.R. v/s. UK Publ. ECHR, Ser.A, No. 335-C.
  • Eisenstadt v/s. Baird 405 US 438, 31 L Ed 2d 349, 92 S Ct 1092.
  • State of Madhya Pradesh v/s. Bhopal Sugar Industries Ltd. (1964) 6 SCR 846.
  • Rattan Arya v/s. State of Tamil Nadu (1986) 3 SCC 385.
  • Anuj Garg v/s. Hotel Association of India (2008) 3 SCC 1.
  • Satyawati Sharma v/s. Union of India (2008) 5 SCC 287.
  • Life Insurance Corporation of India v/s. D.J.Bahadur (1981) 1 SCC 315.
  • Seaford Court Estates Ltd. v/s. Asher (1949) 2 K.B. 481 affirmed in (1950) A.C. 508.
  • Collecter of Customs v/s. Digvijaya Singhji Spinning & Weaving Mills AIR 1961 SC 1549.
  • Jugal Kishore v/s. State of Maharashtra 1989 Supp. (1) SCC 589.
  • Abhiram Singh v/s. C.D.Commachen (2017) 2 SCC 629.

Statutes Referred-

  • The Constitution of India.
  • Indian Penal Code.
  • Law Commission of India, 84th ,172nd report.
  • Child Marriage Restraint Act, 1929.
  • Prohibition of Child Marriage Act, 2006.
  • Hindu Marriage Act, 1955.
  • The Protection of Human Rights Act, 1993.
  • Protection of Women from Domestic Violence Act, 2005.
  • Protection of Children from Sexual Offences Act (POSCO), 2012.
  • Juvenile Justice ( Care and Protection of Children) Act, 2015.
  • Punjab Excise Act, 1914.
  • The industrial Disputes Act, 1947.
  • The Life Insurance Corporation Act, 1956.


The petitioner is a society registered on 6th August,2009 and has since been working in the area of child rights. The society provides technical and hand-holding support to non-governmental organization as also to governmental and multilateral bodies in several States in India.

It has also been involved in legal intervention , research and training on the issue concerning children and their rights.

The society has filed a petition under article 32 of the Constitution in public interest with a view to draw attention to the violation to the rights of girls who are married between ages 15 and 18 years.

As per section 375 of the I.P.C. prescribes the age of consent for sexual intercourse as 18 years meaning thereby that any person having sexual intercourse with a girl child below 18 years of age would be statutorily guilty of rape even if the sexual activity was with her consent and for this reason the law penalizes sexual intercourse with a girl who is below 18 years of age.

Unfortunately, by virtue of Exception 2 to section 375 of the I.P.C., 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 I.P.C., only because she is married to him and for no other reason.


In the sec.375 Exception (2) of I.P.C. it is written that “ Sexual intercourse or sexual act by a man with his own wife, the wife not being under 15 years of age is not rape ” but the other pro-child acts and human rights act state the otherwise.

Contentions of Parties-


  • The learned counsel for the petitioner submitted that absolutely nothing is achieved bye and titling the husband of a girl child between 15 and 18 years of age to have non consensual sexual intercourse with her the marital status of the girl child between 15 and 18 years of age has no rational nexus with that unclear object. Moreover, merely because a girl child between 15 and 18 years of age is married does not result in in her ceasing to be a child or being mentally or physically capable of having sexual intercourse or indulging in any other sexual activity and conjugal relations.
  • The 84th report of the law commission of India, dealing with the rape of a girl child below prescribed minimum age. The reports considered the anomalies in the law relating to rape particular in contacts of age consent of sexual intercourse with a girl child the view by LCI is quite explicit, the view is that since the Child Marriage Restraint Act, 1929 prohibits the marriage of a girl below 18 years of age, sexual intercourse with a girl child below 18 year of age should also be prohibited and the I.P.C should reflect that position thereby making sexual intercourse with a girl child below 18 years of age an offence.
  • Various documents and reports where filed to support there case.


  • A counter affidavit was filed by the respondent that refers to the National Family Health Survey-3 of 2005 in which it is stated that 46% of women in India between the ages of 18 and 29 years were married before the age 18 years. It is also in estimated, interestingly but disturbingly, that there are about 23 million child brides in the country. A child marriage is sought to be somehow legitimized by the Union of India and the onus for having it declared voidable or a nullity is placed on the child bride or the child groom.
  • Various documents and reports where filed to support there case.
  • The respondent submitted that by virtue by virtue of getting married the girl child has consented to sexual intercourse with her husband either expressly or by necessary implication.
  • Traditionally child marriage have been performed in different parts of the country and therefore such must be respected and not destroyed.
  • The Counsel contended that the 167th report of the parliamentary standing committee of Rajya Sabha records that several members felt that marital rape has potential of destroying the institution of marriage.


The division bench of the Apex Court consisting Justice Madan B. Lokur and Justice Deepak Gupta passed a concurring and well written judgement by harmonizing the system of laws relating to children and require Exception 2 to section 375 of the I.P.C. to now meaningfully read as ; “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape”.

It is only through this reading that the intent of social justice to the married girl child and the constitutional vision of the farmers of our constitution can be preserved and protected and perhaps given impetus.

Rule of law-

The sec. 375 of I.P.C deals with rape which has two exception the second exception being “ sexual intercourse of sexual acts by a man with his own wife, the wife not being under 15 years of age is not rape” however this aforementioned section conflict with the POSCO Act, an act which was solely passed to protect the children from as such thing but the POSCO Act, being a special law has a provision in case where one or more laws are involved the special law will prevail above them.


The bench  addressed all the issues regarding this case and viewed all the documents and report and also gave thought about the current requirements of the society and delivered a judgement which is prospective and in the good side of the law but it will help the society to eradicate the concept of child marriage and rape.


The only pragmatic option available was to harmonize the system of laws relating to children and read Exception 2 of Section 375 of the IPC in a purposive manner to make it in consonance with the POSCO Act, the spirit of other pro-child legislation and the human rights of a married girl child.

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