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Independent Thought vs. Union of India and Anr.

Case Summary: Independent Thought vs. Union of India and Anr.

Equivalent Citation: (2017) 10 SCC 800


The petitioner in the case was Independent Thought which was a registered organization dedicated to the protection of children’s rights, while the respondents were the Union of India and the National Commission for Women.

In this 2018 landmark case, the Supreme Court’s division bench held that sexual intercourse with a girl under the age of eighteen is rape, regardless of whether she is married or not. Also, Exception 2 of Section-375 under the Indian Penal Code 1860 violates the rights to equality and non-discrimination.

Facts of the Case:

  1. Independent Thought, the petitioner, is a national human rights organization that was founded on August 6, 2009. On June 11, 2013, a public interest petitioner filed a writ petition under Article 32 of the Constitution contesting the legitimacy and constitutionality of Exception 2, claiming that it was arbitrary and discriminatory towards girls.
  1. Furthermore, it was found to be discriminatory and in violation of Article 14, the Right to Equality. It was also found to be in conflict with POCSO 2012, which must take precedence.

Issues Raised:

  • Is sexual intercourse between a man and his wife, who is a girl between the ages of 15 and 18, considered rape?
  • Whether the Exception 2 of Section 375 is discriminatory?


  1. The petitioner argued that the IPC’s Exception 2 creates an arbitrary distinction between a married girl kid and an unmarried girl child that has no rational connection. Both Article 15(3) and Article 21 of the Constitution prohibit the artificial distinction. There is no other provision in the penal code that grants the husband immunity. It also violates the female child’s bodily integrity and reproductive autonomy, and there are no provisions for dealing with girl-child trafficking. As a result, it is arbitrary and discriminatory, putting the girl child’s best interests at risk.
  1. The Respondent-State maintained that, despite being illegal, child marriage was nonetheless a social reality in the country, and that Exception 2 was intended to preserve voluntary child marriages. Criminalizing these unions would target specific groups of people and their customs. The Respondent further claimed that by marrying, the girl child had given her consent to sexual intercourse with her husband, either expressly or impliedly.
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The Court considered the legitimacy of Exception 2 to Section 375, IPC, and issued a thorough ruling in the form of two concurring opinions.

As per Justice Madan B Lokur

  1. The Court agreed with the Petitioner that Exception 2 did not constitute a legitimate classification and was therefore unconstitutional under Article 14. It was also pointed out that Exception 2 was an obvious violation of Article 21’s right to a dignified life with fundamental autonomy and security.
  1. While most statutes (including POSCO, the Prohibition of Child Marriage Act, 2006 (PCMA), and the Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act) recognize a person under the age of 18 as a child and prescribe the age of consent for sexual intercourse as 18, Exception 2 legalized non-consensual sexual intercourse by husbands with their wives above the age of 15 with consent.
  1. As a result, the Court determined that Exception 2 to Section 375 violated POCSO’s requirements and objectives, as well as Article 15’s social welfare goals (3). To make it consistent with POCSO and fundamental rights, Exception 2 was interpreted to mean that only sexual intercourse with a wife over the age of 18 was not considered rape.
  1. The Court also stated that the right to life included the ability to develop physically, psychologically, and economically as an independent, self-sufficient female adult, and evaluated a variety of materials addressing the negative consequences of child marriage and delivery.

As per Justice Deepak Gupta

  1. The Fundamental Rights given in Part IV of the Constitution states that if legislation infringes citizens’ Fundamental Rights, the court must either strike it down or read it down.
  1. A strong sexual encounter with a 15 or 16-year-old girl kid causes her distress, which is harmful to both her body and psyche. Exception 2 violates Articles 14, 15, and 21 of the Constitution since it jeopardizes a girl’s bodily and mental health.
  1. Because the Court has not addressed the broader question of “marital rape,” it should be interpreted to mean that a husband who has sexual intercourse or sexual activity with his wife is not committing rape. The question of “marital rape” is not addressed in any way in the decision.

The biggest contradicting reality of the whole case is if we take a close glance into the sixth clause of S-375, where it is written that:

“A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman”

This is also referred to as the ‘statutory rape’ statute. The consent of a lady under the age of 18 has been ruled meaningless in general. On the other hand, Exception 2 of Section 375 enables a husband to have sexual relations with his wife, a married girl child between the ages of 15 and 18, with or without her consent but defines non-consensual sexual relations with a girl above the age of 18 as Rape. If the same husband offends her modesty, he can be prosecuted for a minor offence under Section 354 of the IPC 1860, but not for the severe crime of rape.

Case Laws Cited in favour:

  •  Suchita Srivastava vs. Chandigarh Administration [ (2009) 9 SCC 1]:

States that the right to reproductive choice of women was equated with personal liberty and privacy

  • The State of Maharashtra vs. Madhukar Narayan Mardikar [(1991) 1 SCC 57]

When the Court concluded that a woman, regardless of her sexual history or character, was entitled to privacy and protection against intrusion and sexual assault.

  • The State of Karnataka vs. Krishnappa [(2000) 4 SCC 75]

Where sexual violence and rape were judged an unjustified invasion of a woman’s privacy.


By criminalizing sexual intercourse with a wife under the age of 18, the Independent Thought case has made a significant stride in protecting the girl child. However, the Supreme Court included no special provisions for dealing with cases in which the interests of other children are also at risk.

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It didn’t take into account situations where the spouse is also a minor and would be just as innocent as the girl if they had consensual sex. In India, eloping and marriage are relatively common, and the Apex Court’s indifference to such instances simply because they can be lumped in with child marriage cases is detrimental to the boy kid’s interests.


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