Independent Thought v. Union of India

One of the most important decisions in the history of Indian judiciary read this case analysis to find out how the Supreme Court made its move to hold that marital rape is non-existent in the Indian fabric
CITATIONWrit Petition (Civil) No. 382 of 2013
COURTSupreme Court of India
JUDGES/CORAMJustice MB Lokur and Justice D Gupta


In Independent Thought v. Union of India, a division bench of the Supreme Court of India read down Exception 2 to Section 375, Indian Penal Code, which now stands thus altered as “Sexual intercourse by a man with his wife, the wife not being less than 18 years of age, is not rape”.


The facts of the case are as follows: 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 recognizes 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 favor of the petitioner, holding that the marital rape exemption should only cover cases where the woman is 18 years or older.

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The main issue in the case was: Whether the exception 2 to section 375 of Indian Penal Code requires modification?

Summary of court decision and judgment

The exception to marital rape, as applicable to minor girls, was declared unconstitutional for violating two fundamental rights: Article 14 and Article 21, Constitution of India.

It was held that there was no discernable object behind the distinction between “married” and “unmarried” minor girls. Even if there were an object, the Court added, there was no rational nexus between the marital status of a minor girl on the one hand, and the “unclear object” on the other. The classification was, therefore, held to be arbitrary, and violative of Article 14. There is no discernible object behind classifying women into “married” and “unmarried” when considering their right to refuse consent to sexual intercourse. A woman cannot be deemed to have implicitly consented to sexual intercourse with her husband simply by virtue of marriage. In fact, the same sentiment was expressed by the Supreme Court, which held,

“It must be remembered that those days are long gone when a married woman or a married girl child [not just a married girl child] could be treated as subordinate to her husband or at his beck and call or as his property. Constitutionally a female [not just a minor female] has equal rights as a male and no statute should be interpreted or understood to derogate from this position. If there is some theory that propounds such an unconstitutional myth, then that theory deserves to be completely demolished.”


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 criminalize any sexual activity carried out with persons younger than 18 years. These provisions recognize the emotional and physical damage inflicted on those who are subject to 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 purposive and harmonious construction, and in the best interests of children, to construe Exception 2 as if it 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 less than 18 years of age, would this become a constitutional issue? The current statutory age for sexual consent has been criticized 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.

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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 any 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 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 present decision has taken a major step to protect the girl child by criminalizing sexual intercourse with a wife below 18 years. However, Hon’ble Supreme Court had not laid down any special provision for dealing with such cases where the interest of other children is also at stake. It did not consider those cases where the husband is also a minor and would be as innocent as the girl if have consensual sex with her. In India, cases of eloping and marriage are very prevalent; the Apex Court’s ignorance towards such cases just because they can be generalized under the child marriage cases is against the interest of the boy child.

The Court also tried to not comment on the “marital rape” issue where the girl is above 18 years by emphasizing that “marital rape” is not the issue before the court and judgment should not be observed in any way for the issue of “marital rape”. The reasoning court applied for concluding that Exception 2 is violative of Fundamental Rights was equally applicable to a girl above 18 years old whose right to dignity is injured by the forceful sexual relation.

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