'Extremely positive step for women’s rights'

Interview with Jayna Kothari, legal expert.

Published : Oct 25, 2017 12:30 IST

Jayna Kothari.

Jayna Kothari.

IN the judgment in Independent Thought vs Union of India , delivered on October 11, the Supreme Court bench consisting of Justices Madan B. Lokur and Deepak Gupta read down Exception 2 to Section 375 of the Indian Penal Code (IPC) to hold that sexual intercourse by a man with his own wife if she is below 18 years of age would amount to rape. Reading down is an interpretative tool that enables a constitutional court to bring a law in harmony with other legal provisions. The Exception had provided that sexual intercourse by a man with his wife, the wife not being under 15 years of age, was not rape. Many observers consider the judgment a landmark, although it has led to some apprehensions about its implications.

Jayna Kothari is an advocate practising in the Karnataka High Court and the Supreme Court. She is also the executive director of the Centre for Law and Policy Research (CLPR) in Bengaluru. She practises extensively in the field of constitutional law, including the right to education and health and gender and disability rights, and is the author of The Future of Disability Law in India (OUP, 2012).

In the organisation Independent Thought’s challenge to the Exception 2 to Section 375 of the IPC before the Supreme Court, Jayna Kothari represented the Child Rights Trust as an intervener. The organisation works in Karnataka against child marriage. Both Justice Lokur and Justice Gupta, in their concurrent judgments reading down the Exception, complimented Jayna Kothari for her contribution and research, which helped in deciding the case.

Excerpts from an email interview she gave Frontline :

Has the Supreme Court’s judgment in “Independent Thought” made child marriages void, rather than voidable, because even the husband and wife of existing child marriages have to avoid intercourse and, therefore, living together until the wife turns 18?

No, the judgment does not make child marriages void, although it does give a recommendation that all other State governments should follow the Karnataka example of amending the Prohibition of Child Marriage Act (PCMA), 2006, to make child marriages void. In existing marriages, even if the husband and wife have to live separately until the wife turns 18, it will not make the marriage void. The marriage is still legally valid even if the couple may not be staying together or not having sexual intercourse.

In many cases, courts have themselves directed couples to stay separately and not consummate the marriage until the girl turns 18 and this would not make their marriages void. This was directed by the Delhi High Court in Association for Social Justice & Research vs Union of India [2010 SCC Online (Del) 1964] to the parents of a minor girl and to the husband to ensure that the marriage was not consummated until the girl turned 18 and after that it could be consummated only with her consent, which was also referred to by the Supreme Court in its judgment.

If the wife below 18 gives her consent for intercourse, will it still be an offence after this judgment?

Yes, it would still be an offence of rape because the judgment holds that with or without consent when the wife is under 18 years, any sexual intercourse would amount to rape. A similar provision is provided in Section 375 in (Sixthly) of the IPC, which states that sexual intercourse with a woman is rape “with or without her consent, when she is under eighteen years of age”.

This is also provided under the Protection of Children from Sexual Offences (POCSO) Act, 2012, where there is no mention of consent for any sexual act with a child, who is defined to be under 18 years of age.

If a minor wife cannot live with her husband until she turns 18, and if they already have children before this judgment, what will be the consequence? Would it mean disruption of their family as a result of this judgment?

No, it would not mean disruption of the family. It would mean protection of the sexual and reproductive rights of the minor girl. If her husband wants to see the children and spend time with the children, he is free to do so. It is only sexual intercourse with a minor girl that would be treated as rape.

DATA FROM KARNATAKAFrom your study of child marriages in Karnataka, which is the only State to make child marriages void, rather than voidable, what do the data suggest?

In Karnataka, as per the data obtained by the CLPR pertaining to the year 2016-17 under the Right to Information Act, a total of 702 complaints were received by the Child Marriage Prohibition Officers (CMPOs) in various districts. But only 17 complaints were registered with the police.

It also states that 58 child marriages were in fact conducted. There is no explanation given as to why the CMPOs did not file complaints and take steps for prosecution in the remaining cases. Thus, implementation of the PCMA is a serious issue, and child marriages are not being prevented by the authorities effectively. Also, the actual number of child marriages conducted is much higher, as child rights activists working on the ground state from their experience.

The amendment to make child marriages void ab initio has been with effect from April 26, 2017, but the State government has taken no steps to publicise this amendment and spread awareness about it. People do not know that this amendment has been brought into force and that child marriages are void. There is an urgent need to ensure that this amendment is given wide publicity.

How many CMPOs does the country have and what have they achieved under the PCMA? Do you have State-wise data? Has the PCMA been ineffective? If not, why?

We do not have countrywide data on how many CMPOs are appointed. It varies from State to State. Having more CMPOs does not have a direct correlation with better implementation of the PCMA.

In Karnataka, for example, there are 54,000 CMPOs because almost all government officials have been made CMPOs. This includes government schoolteachers, anganwadi workers, revenue officials, police inspectors, among others. Owing to this, in fact, implementation of the PCMA is very weak because none of these officials know their roles under the PCMA, and when complaints are made, the officials pass the buck and ask the complainant to approach someone else as they are either too busy or not aware of what they are required to do.


Justices Lokur and Gupta have said in their separate judgments that they were not dealing with marital rape of a woman who is 18 years of age and above since that issue was not before them. Considering that the Delhi High Court is currently hearing a challenge to marital rape, how far do you think this judgment would come to the help of the petitioners in the Delhi High Court?

Although the judges have specifically held that they were not dealing with the issue of marital rape, I believe this judgment will play a significant role in deciding the issue in the Delhi High Court. For the first time, it has been held that sexual intercourse within marriage will be rape, even if it is in the case of minor wives. This barrier of recognising sexual violence within marriage has been crossed by the Supreme Court. Justice Madan Lokur categorically rejected the argument that recognising marital rape would destroy the institution of marriage, which has been the central argument of the government.

This will open up the debate on recognising marital rape in the country and is an extremely positive step for the protection of women’s constitutional rights within marriage.

Exception 2 of Section 375 of the IPC, which the bench has read down to protect married girls below 18 from rape, appears to be a redundant provision because other pieces of legislation, such as the POCSO Act and the Prevention of Domestic Violence Act, do not have similar exceptions and also deal with sexual violence. Therefore, how serious was the challenge to this provision in the IPC? In fact, Section 42 of the POCSO Act says it will prevail over the IPC.

This PIL [public interest litigation] was a serious challenge because while other legislations like the POCSO Act and the Protection of Women from Domestic Violence Act (PWDVA) did recognise sexual violence within marriage as an offence, Section 375 specifically exempted it for married minor girls, due to which these other laws were being diluted.

Very few cases have been registered under the POCSO Act where the girls have been married, and even in those cases courts have been taking a very lenient view of giving bail to the accused only because he was the husband, and the IPC did not make rape with minor girls above 15 an offence. Under the POCSO Act, marriage of the parties was being seen by the courts as a mitigating factor to grant bail to the accused when it should have been the other way around.

Under the PWDVA, sexual violence is recognised for obtaining civil remedies of protection orders but does not make it a criminal offence. Hence, this PIL and the judgment of the Supreme Court are extremely significant.


The judgment has attracted the criticism that since the enhancement of the age of consent from 15 to 18 was erroneous, the reading down of the exception to rape is also erroneous as both fail to recognise that adolescents make love and want to experiment, and therefore, their relationships should not be criminalised.

The age of consent for statutory rape both under the POCSO Act and Section 375 of the IPC as being raised from 16 to 18 years has been criticised as criminalising the rights of young persons to have sexual relationships. This is a larger question which cannot be addressed by merely reducing the age of consent and would need to take into account the difference in ages of male and female partners as to what would constitute rape.

If there is any revision of the age of consent, that is to be seen in the future. For now, the age of consent for sexual intercourse is 18 and so is the age of marriage, and hence on this front I don’t think there has been any substantive criticism of this judgment.

In fact, it has been welcomed because within marriage all the data from reports and studies carried out nationally and internationally show that minor girls face high levels of sexual violence, deprivation of their reproductive choices and risks to their health.

Muslim personal law permits marriage of girls under 18. How would this judgment affect Muslims?

This judgment would apply to Muslims without doubt, just as it would apply to Hindus, Christians and Parsis as the IPC is a secular law and applies to everyone. It is not just Muslim personal law, but even Hindu law permits marriages of minors as it does not make them void.

Following this judgment, how would the police come to know about the age of the wife in a child marriage so as to prosecute the husband of a minor wife? If the minor wife makes no complaint, can the police act on their own on the basis of information they receive from third parties? What if the husband and the minor wife both say that there has been no sexual relationship between them? Will sexual relationship and therefore, rape, be implied if the wife is a minor?

Under the IPC, the police can only act if they receive a complaint from someone, either from the girl herself or from any third parties, such as her family members or any other concerned person. For the offence of rape to be proved, a full-fledged trial will need to be conducted, just like in the case of any other offence. If the minor wife states that there has been no sexual relationship, then her statement will need to be taken into account.

However, for the purpose of evidence, other circumstantial evidence can be taken, such as whether she had become pregnant any time, statements of other family members.

Does the judgment have the potential of eradicating child marriage as marrying a minor wife will be construed as a criminal offence? Or will the IPC Exception, which has been read down, suffer the same fate as the PCMA?

I think this judgment has great potential for eradicating child marriage. The impact of the offence of rape under Section 375 of the IPC is immense and it will significantly deter child marriages. The PCMA was weak because the punishment for child marriages was so low, and as a special legislation it was not taken seriously even by law enforcement officers and because the IPC exempted child marriages from the offence of rape.

Now that the IPC has been read down, it will guarantee the reduction of child marriages as the offence of rape is serious and there is no escape from criminal charges for a man marrying a minor girl.

Justice Gupta, in his concurring judgment, has drawn attention to Section 198 (6) of the Code of Criminal Procedure (CrPC) and has held that it will apply to cases of rape of wives below 18 years and that cognisance can be taken only in accordance with the Section. Now, this provision says a court can take cognisance only within one year of the date of occurrence. Will it not lead to an anomaly of sorts?

No, this will not lead to an anomaly, because Section 198(6) is a provision that was already present in the CrPC. Limitation has been provided under the CrPC for marital rape to be one year, and that would hold. If we are successful in ensuring that this judgment is given wide publicity and that people are made aware that sexual intercourse within child marriages would be rape, then the limitation under Section 198 (6) of the CrPC would not be of any concern as there would be a move towards eradication of child marriages itself and greater awareness in filing complaints.

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