In a landmark judgment on October 11, the Supreme Court made null and void a 77-year-old law and ruled that sex between a man and his wife below 18 years of age will be counted as rape. The apex court also declared that in such cases the husband can face up to 10 years' imprisonment under the Indian Penal Code or even a life term under the POCSO (Protection of Children from Sexual Offences) Act of 2012.
Indian child protection laws prohibit an adult from having sex with someone below the age of 18. But its criminal code, IPC Section 375(2), had included an exception for married couples. By this ruling, the Court has established uniform 18 years as age of consent. “We are left with absolutely no other option but to harmonise the system of laws relating to children,” Justice Madan Lokur said in his decision. The apex court said that the exception violates Article 14, 15 and 21 of the Constitution.
The judgment is revolutionary in nature and may function as a deterrent to child marriage which is rampant in India, even though a law is in place, banning child marriage: The Prohibition of Child Marriage Act 2006. Expressing dismay over an alarming figure of 23 million child brides in the country, the Supreme Court said that one out of every five marriages violated laws prohibiting child marriage.
The Bench of Justices M.B. Lokur and Deepak Gupta, which criminalized sex with a minor wife, referred to a study conducted on child marriages, based on 2011 census. “It was found that three per cent girls in the age group of 10 to 14 years got married and about 20 per cent girls were married before attaining the age of 19 years. Therefore, more than one out of every 5 marriages violates provisions of the Prohibition of Child Marriage Act and the Hindu Marriage Act,” it said.
As per the recent National Family Health Survey (NFHS-4, 2015-16) data, 39.1 per cent of women in the age group of 20-24 years were married before 18 years. The phenomenon of child marriage varies from state to state. According to a study report published by the Planning Commission in 2014 the situation in ten states is as follows.
The Supreme Court has asked the Centre and states to take proactive steps to prohibit child marriage, and voiced concern over thousands of minor girls being married in mass wedding ceremonies on the occasion of Akshaya Tritiya. The apex court has also observed that child marriage cannot go on like this just because this illegal practice was assumed to be legal and has been going on for ages.
The C suggested that penal provisions should be made stringent to punish members of a family who force a child into a matrimonial alliance. It said the punishment under Prohibition of Child Marriage Act (PCMA) was not sufficiently punitive and observed that PCMA was being misused as women promoting child marriages were kept out of the penal provision.
The judgment came in a petition filed by the NGO, Independent Thought. It is surprising that the BJP government, which had supported the Supreme Court judgment of making the triple talaq invalid, opposed the petition by saying that given the “socio-economic realities” around child marriage in India, the exception is needed to “protect the institution of marriage”. “Otherwise, the children from such marriages will suffer,” the Centre’s lawyer Binu Tamta had told the court in August.
The Sangh Parivar, whose political arm is BJP, is overly concerned about protecting the honour of women. As soon as Yogi Adityanath took charge as U.P. Chief Minister, he constituted anti- Romeo squad of police and they terrorized the young couple. The Bajrang Dal and VHP members are after young boys and girls on the Valentine’s Day to safeguard Indian culture being polluted by western influence.
But the Sangh Parivar has not protested against the rampant child marriages taking place in the country and the consequent violation of the human rights of millions of girls. Why the Sangh Parivar, which has launched nation-wide aggressive and violent cow protection movement, leading to lynching of innocent people, has not started a movement against child marriage and atrocities on the dalits?
The attitude of the BJP government and of the Sangh Parivar towards women’s issues indicates tacit endorsement of discrimination against women as found in Manusmriti. The Sangh Parivar on various occasions has extolled the greatness of Manusmriti. On November 30, 1949 (four days after the Constitution of India was finalised) the RSS’s Organizer wrote: “But in our Constitution there is no mention of the unique constitutional development in ancient Bharat. To this day Manu’s laws, as enunciated in the Manusmriti, excite the admiration of the world and elicit spontaneous obedience and conformity. But to our constitutional pundits that means nothing”.
The RSS ideologue, V. D. Savarkar, had great admiration for Manusmriti. “Manusmriti is that scripture which is most worship-able after Vedas for our Hindu Nation and which from ancient times has become the basis of our culture-customs, thought and practice. This book for centuries has codified the spiritual and divine march of our nation. Even today the rules, which are followed, by crores of Hindus in their lives and practice are based on Manusmriti. Today Manusmriti is Hindu Law,” he wrote.
Manusmriti contains many derogatory comments on women. A write up, “The Status Of Women As Depicted By Manu In The Manusmriti” on Nirmukta website has quoted 40 anti-women statements from Manusmriti. Some of them are very repugnant.
“Swabhav ev narinam …..” – 2/213. It is the nature of women to seduce men in this world; for that reason the wise are never unguarded in the company of females.
“Avidvam samlam………..” – 2/214. Women, true to their class character, are capable of leading astray men in this world, not only a fool but even a learned and wise man. Both become slaves of desire.
“Matra swastra ………..” – 2/215. Wise people should avoid sitting alone with one’s mother, daughter or sister. Since carnal desire is always strong, it can lead to temptation.
“Na ashniyat…………….” – 4/43. A Brahman, true defender of his class, should not have his meals in the company of his wife and even avoid looking at her. Furthermore, he should not look towards her when she is having her meals or when she sneezes/yawns.
“Balye pitorvashay…….” – 5/151. Girls are supposed to be in the custody of their father when they are children, women must be under the custody of their husband when married and under the custody of her son as widows. In no circumstances is she allowed to assert herself independently.
“Ati kramay……………” – 9/77. Any woman who disobeys orders of her lethargic, alcoholic and diseased husband shall be deserted for three months and be deprived of her ornaments.
“Trinsha……………….” – 9/93. In case of any problem in performing religious rites, males between the age of 24 and 30 should marry a female between the age of 8 and 12.
The last statement justifies child marriage. Majority of the religions discriminate against women. The All India Muslim Personal Law Board wants to maintain the triple talaq which violates the rights of women. In most of the religions priesthood is reserved only for men. Even though Pope Francis started including women in foot washing ceremony on Holy Thursday, the Syro-Malabar Church in India has found excuses to exclude women from this very important symbolic ceremony.
Any political ideology based on religion is against the liberation of women. The women cannot expect justice and freedom from a government guided and controlled by Hindutva ideology. Liberation of women requires liberation from Hindutva ideology that is exclusive and discriminatory of women and Dalits.
External Affairs Minister Sushma Swaraj on 14th October slammed the opposition for terming the BJP an "anti-women party" and said there are six women Cabinet Ministers in Prime Minister Narendra Modi's government. Modi’s cabinet has six women ministers, including two in the powerful Cabinet Committee on Security (CCS), Ms Swaraj said, while speaking at a 'Mahila Town Hall' in Delhi. She also said that the BJP is far ahead in political empowerment of women. "The party is making every effort to resolve issues related to women's safety, empowerment and self-reliance," she said.
If BJP is genuinely interested in the political empowerment of women it should pass the Women’s Reservation Bill that has been languishing in Parliament for the last 21 years. Sonia Gandhi, the Leader of the main Opposition in Parliament, has promised the support of the Congress Party. The BJP has to declare publically that it condemns the derogatory statements against women in Manusmriti.
(Published on 23rd October 2017, Volume XXIX, Issue 43)