LexINDEPENDENT THOUGHT versus UNION OF INDIA & ANR.
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[2017] 13 S.C.R. 821 INDEPENDENT THOUGHT V. UNION OF INDIA & ANR. (Writ Petition (Civil) No. 382 of20!3) OCTOBER II, 2017 [MADAN B. LOKUR AND DEEPAK GUPTA, JJ.) Penal Code, 1860 - Exception 2 to s.375: A B Sexual intercourse between a man and his wife being a girl between 15 and 18 years of age - Rape or not - Held: Sexual C intercourse with a girl below 18 years of age is rape regardless of whether she is married or not - Exception carved out in the Penal Code creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought lo be achieved - The D artificial distinction is arbitrary, discriminatory and not in the interest of girl child and contrary lo the Arts.15(3), 21 of the Constitution and commitments made in international conventions - Human Rights - Children -Married girl child. Whether there is any incongmi(v between the Exception 2 to s.375 of the /PC ands. 5(n) of the POCSO Act and which provision overrides the other - Held: There is an apparent conflict or incongmi(v between the provisions of Penal Code and the POCSO Act - Whatever be the explanation, given the context and purpose of their enactment, primacy must be given to pro-child statutes over the /PC as provided for in ss. 5, 41 of the !PC-Further, as provided in s.42A of POCSO. in case of an inconsistency between POCSO and any other law, POCSO will prevail - Statutes concerning the rights of the children are special laws concerning a special subject E F of legislation and therefore the provisions of such subject-specific legislation must prevail and take precedence over the provisions of a general law such as the /PC - There can be no other opinion G regarding the pro-child slant of JJ Act as well as the POCSO Act - Protection of Children from Sexual Offences Act, 2012(POCSO) - ss.5(n),42 - Juvenile Justice (Care and Protection of Children) Act, 2015. 821 H 822 A B c D E F G H SUPREME COURT REPORTS [2017] 13 S.C.R. Interpretation of Statutes: Harmonious and Purposive Construction - Held: Exception 2 to s.375 of Penal Code to be read in a purposive manner to make it in consonance with the POCSO Act, the spirit of other pro-child legislations and the human rights of a married girl child - Therefore, to harmonize system of laws relating to children, Exception 2 to s.375 of the !PC now required to be meaning/idly read as: "Sexual intercourse or sexual acts by a man with his own wife. the wife not being under eighteen years ~f age, is not rape". Crime Against Women: Rape - Held: A rapist remains a rapist and marriage with the victim does not convert him into a non-rapist - Similarly, a rape is a rape whether it is described as such or is described as penetrative sexual assault or aggravated penetrative sexual assault - A rape that actually occurs cannot be legislatively be simply whisked away or legislatively denied as non-existent. Constitution of India : Art. 15(3) - Spirit of - Held: Art. 15(3) cannot and ought not to be interpreted restrictively but must be given its fi11/ play - From this perspective, it is clear that legislation intended for affirmative action in respect of a girl child must not only be liberally construed and interpreted but must override any other legislation that seeks to restrict the benefit made available to a girl child. Art.21 - "right to life" - Held (Per Deepak Gupta, J.): The right to life envisaged in Art.21 is not merely a right to live an animal existence - This Court has repeatedly held that right to life means a right to live with human dignity - In case of minor girl, it would mean her right to grow and develop physically. mentally and economically as an independent self sufficient female adult. Art.14 - Exception 2 to s.375 on the touchstone of Art. 14 - Held: (Per Deepak Gupta, J.) When the State on one hand. has. by legislation laid down that abetting child marriage is a criminal offence, it cannot, on the other hand defend this classification of girls below 18 years on the ground of sanctity of marriage because such classification has no nexus with the object sought to be achieved - Further, the husband is not given the immunity in any other penal provision except in Exception 2 to s.375 - It does not INDEPENDENT THOUGHT v. UNION OF INDIA & ANR. 823 stand to reason that only for the offence of rape the husband should A be g
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