SC verdict on ‘rape’ of minor wife rape

Amritananda Chakravorty Mihir Samson

In a long awaited ruling, the Supreme Court has read down part of Section 375 of the Indian Penal Code, which provided that sexual intercourse or sexual acts between a husband and wife, the wife not being under 15 years of age, out of the purview of rape. In other words, if a husband committed an act of rape on his wife, who was above the age of 15, it would not be considered rape. The petition had challenged the provisions as being violative of Articles 14 (right to equality), 15 (right to non-discrimination) and 21 (right to life) of the Constitution, as it permitted intrusive sexual intercourse with a girl child between the ages 15-18 only on the ground that she was married. The argument was that the exception essentially brought down the age of consent for married women from 18 to 15 and in fact, all minors should be protected from sexual assault, irrespective of their marital status.
It was also argued that the exception was in contradiction to provisions under the Protection of Children from Sexual Offences Act, 2012, which criminalise intercourse with a girl younger than 18, with or without her consent.The Government defended the exception by claiming that it was necessary for the protection of the institution of marriage, especially in light of the wide prevalence of child marriage in India.
In its judgment, the Apex Court said that the allowing the exception was violating the bodily integrity of the girl child. The age of consent is 18 across all statutes and the exception in IPC was held to be “capricious, arbitrary and violates the rights of a girl child”. The Court had also observed that child marriage could not go on on the basis that it had been a long held practice and could not be used as an excuse to lower the age of consent. The Court did not find any rational basis creating a distinction between girls aged 15-18 who are married, and those who are not. The judges underscored the ill-effects of child marriage and how the exception leads to trafficking of young girls. The exception has also promoted pregnancy in a young age in girls, which has an adverse impact on their health.
The judges have issued a disclaimer that their views in the judgment are not be construed as pertaining to the issue of marital rape of women above the age of 18, as that issue was not before it. The validity of the marital rape exception for adult women has been challenged and is before the Delhi High Court.[Independent Thought v Union of India, Writ Petition (Civil) No. 382 of 2013, date of judgment:11.10.2017].

Major Decisions

i. Talwars acquitted in Aarushi Talwar-Hemraj Murder case: The Allahabad High Court acquitted Rajesh and Nupur Talwar of the murder of their daughter Aarushi Talwar and domestic help Hemraj that happened in May, 2008. The Court held that the couple were entitled to the benefit of doubt, while pointing out the various loopholes in the investigation conducted into the matter. The Court found that there was no clinching evidence to convict the couple and the evidence was just circumstantial. The evidence led by CBI did not meet the standard of ‘beyond reasonable doubt’, and the CBI itself had said that there could be other killers as well. The couple had appealed from the judgment of the CBI court, which hadconvicted them of the two murders and awarded them life imprisonment. [Nupur Talwar and Rajesh Talwar v State of UP, Criminal Appeal No. 293-294 of 2014, date of order: 12.10.2017].

ii. New system for designation of senior advocates: With an aim of bringing transparency into the process of the designation of senior advocates, the Supreme Court has passed a number of directions that will guide the Supreme Court itself and all the high courts in designating senior advocates. All designations will now be dealt with by a panel headed by the Chief Justice of India. The Committee will be called ‘Committee of Designation of Seniors’ and will have a Secretariat, which will deal with all the suggestions made for the candidates. The name of the candidates will then to be uploaded on a website to invite suggestions, which will then go to a bench of three judges for consideration. This was a result of a petition filed by Indira Jaising, former Additional Solicitor General and Senior Advocate, two years ago challenging the opaque system of designation, which created various arbitrary distinctions between senior and junior lawyers [Indira Jaising v Supreme Court of India, Through Secretary General, Writ Petition (Civil) No. 454 of 2015, date of judgment: 12.10.2017].

iii. Rohingyas deportation case adjourned; SC stays deportations in the mean time: The Supreme Court heard substantial arguments in the case relating to the deportation of the Rohingyas. It then adjourned the case for further consideration.The Court refrained from passing an order, but directed the Union Government not to carry out any deportations in the mean time. Further, the Centre has been asked to strike a balance between human rights and the interests of the nation. The Court also said that in case there is any contingency, i.e., deportations, the petitioners can approach the Court [Mohd. Salimullah v Union of India, Writ Petition (Civil) of 793/2017, date of order: 13.10.2017] (To be continued)

Sunday, 22 October, 2017