BY- IPSITA BANERJEE
UNIVERSITY- TECHNO INDIA UNIVERSITY, WEST BENGAL
1]In 2013, a child rights organization (Independent Thought) , filed a writ petition before the Supreme Court in accordance with public interest.
2] This petition which was file before the Supreme Court in public interest, the petition challenged the constitutional validity of exception (2) of section 375 of the IPC [Indian Penal Code] which discriminated sexual intercourse between a husband and wife of the ages- 15 and 18 years.
3] Petitioners claimed, this provision violated the rights of married child between the age of 15 to 18 years, as in all other instances under the IPC, the age of consent for sexual intercourse was 18 years of age.
4] The petitioner looker for explanation and harmonization of exception (2) of section 375 of IPC with existing Laws on child marriage and children’s rights.
1] Whether a sexual intercourse between a man and his wife being a girl of age 15 to 18 years is rape?
[A girl child of age 15 to 18 years of old dose not cease her from being a child or being mentally and physically capable of having sexual intercourse or including any other sexual activity or having conjugal rights.]
2] Whether exception (2) to section 375 of IPC is discriminatory?
[ The discrimination is between a consenting girl child who is almost an adult , and non-consenting child bride of age 15 years.]
3] Is the court composing a new offense?
[ Doubts raised to it were , what if the court strikes down fully or partially the exception (2) of section 375 of IPC then , is the court creating a new offense?]
REASONING OF THE COURT-
The “Right to Life ” mentioned in Article 21 of the Constitution of India is not merely a right to life as of an animal existence. The court has held that right to life means to live a life with proper human dignity. In the case of a minor girl child it means her right to develop as a good healthy woman and it requires not only good physical health but also proper and sound mental health. The girl child must not be deprived of her right of choice.
The exception (2) of section 375 of IPC makes a false distinction between a married and unmarried girl child without any reasonable connection. So the false distinction in both Article 15(3) and Article 21 of the constitution, as per the judgment –no other provision in penal Laws gives any freedom to the husband and it also violates the bodily integrity and reproductive choice of the girl child, has no measures for trafficking of a girl child. It is whimsical and discriminatory to obstruct the interest of the girl child.
The parliament has increased both the age of marriage and consent from time. At present a girl below 18 years is not eligible to marry or give consent.