Independent Thought                                                                  ….Petitioner


Union of India                                                                            ….Respondents


Under Article 32 of the Indian Constitution, a petition was filed with a view to drawing attention to the violation of the rights of girls who are married between the ages of 15 and 18 years. This case was filed in light of Exception 2 of Section 375 of Indian Penal Code 1860 (the IPC), which defines it as ‘Sexual Intercourse’ or sexual acts by a man with his own wife, the wife not being under the 15 years of age, is not rape. Section 375 of the IPC defines the definition and penalty for rape of any woman under the age of 18 with or without her consent. In the petitioner’s opinion, sexual intercourse with a girl below 18 years of age is rape in any case, whether the girl is married or not. How do girls between the ages of 15 and 18 make changes, whether they are married or unmarried? This exception, written under Section 375 of the IPC, develops an unjustified and nonexistent difference between a married and unmarried girl child. The artificial distinction serves no legitimate purpose and offers no benefits for the protection of girl child.

The petitioner a registered member of the society since August 6th, 2009, has been advocating for the rights of children since then. In 2013, a child rights organization, Independent Thought, filed a writ petition in public interest before the Supreme Court. This petition challenged the constitutionality of Exception 2 to Section 375 of the IPC. Anyone engaging in sexual activity with a girl under the age of 18 would be guilty of rape even with the consent of a girl under 375 of the IPC. The majority of Indian law recognizes that a female under the age of 18 is a child. So, engaging in any sexual activity with a married girl under the age of 18 should result in legal repercussions. As a result, a girl’s right to refuse sexual relations with her husband has been removed. Actions performed against her will are no longer illegal under IPC law. . Unfortunately, by virtue of Exception 2 to Section 375 of the IPC, if a girl child between 15 and 18 years of age is married, her husband can have non-consensual sexual intercourse with her, without being penalized under the IPC, only because she is married to him and for no other reason. The right of such a girl child to bodily integrity and to decline to have sexual intercourse with her husband has been statutorily taken away and non-consensual sexual intercourse with her husband is not an offence under the IPC.


1. Whether Exception 2 to Section 375 IPC violates Article 21 by prescribing a lower age of consent for married girls?

2. Whether Exception 2 to Section 375 IPC violates Article 14 by discriminating between married and unmarried minor girls in cases of sexual violence?

3. Whether Exception 2 to Section 375 IPC can go against the age of consent universally fixed by the Parliament at 18 years for girls in all other statutes?



According to the petitioner attorney, Exception 2 of Section 375 is discriminatory and goes against Article 15(3) of the Indian Constitution. Permission to have sex without the girls consent achieves nothing. Violation of Human Rights.


The opposing council made the case that because child marriages are still common in India and are only voidable under the Prevention of Child Marriages Act, it is crucial to maintain the age of 15 years under exception 2 of Section 375 of the IPC to protect husband and wives from having sexual relations made illegal.


The bench unanimously read down Exception 2 to section 375 of the Indian Penal Code, the provision states that “ sexual intercourse or any sexual acts by a man with his own wife, the wife not being under the age of 15 years is not a rape 

The Supreme Court examined and evaluated the international legal framework to which India is a signatory, such as the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of all forms of Discrimination against women (CEDAW). The martial rape exemption was held to be in violation of the international legal framework because it facilitated the practice of child marriage in India.

The exception was held to be in contravention of Articles 14 and 21 and hence Unconstitutional.

The exception was found to be in conflicted with other laws in effect and also created internal issues within the Indian Penal Code.


The Court noted that the Exception created an unnecessary and artificial distinction between married and unmarried girls, without any rational nexus to the objective of the Section and held it to be arbitrary and discriminatory under Articles 14 and 15 and violative of basic human dignity guaranteed under Article 21 of the Constitution. The Court also noted that the Exception was contradictory to the scheme developed by other pro-child legislations including POCSO, which, being special legislations, would prevail. 

While the Court noted a range of cases developing the relationship between the right to privacy and aspects of Article 21, it did not discuss in detail the applicability of the right to the present case. In his concurring judgment, Justice D. Gupta suggested that this was because the right to privacy was available to all women, and did not bear specific relation to married girl children between the ages of 15-18, who were the subject of the petition.


Following consideration of the facts of the case’ Independent Thought v Union of India, as well as other factors pertaining to the petition, both judges reach the following separate conclusion and rule that exception 2 of 375 of IPC, insofar as it relates to girls under the age of 18, is subject to being struck down for the following reasons:-

Therefore it is arbitrary, a violation of a girl child’s right that is not only reasonable, but also a violation of Article 14 and 21 of the Indian Constitution.

Additionally it conflicts with POSCO’s (Protection of Children from Sexual Offence) rule’s which must be followed.

Elina T George

Asian Law College