The judgement by the Supreme Court on 11.10.2017 is a landmark step to curb child marriages in India. The Apex Court held that sexual intercourse by a man with his wife, who is below 18 years of age, is rape.
“Human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance”, a Bench of Justices Madan B.Lokur and Deepak Gupta said. Thus the Court read down exception 2 to Section 375 (rape) of the Indian Penal Code (IPC), which granted blanket liberty and freedom to the husband of a minor girl between 15 and 18 years of age to have non-consensual sexual intercourse with her. Her willingness or consent was of no concern. The husband in such cases was not punished for rape. The court stressed “A child remains a child whether she is described as a street child or a surrendered child. Similarly a child remains a child whether she is a married child or an unmarried child or a divorced child or a separated or widowed child…”
The Prohibition of Child Marriage Act 2006, Protection of Children from Sexual Offences Act 2012 , Juvenile Justice Act 2000, Criminal Law Amendment Act 2013 all these define a “child” as someone who is below 18 years of age.
However the definition of rape under 375 IPC, gives an exception that is “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age is not rape”. This exceptional clause certainly has encouraged child marriages in India. Taking a dig at the exception, Justice Lokur said “An unmarried girl child can prosecute her rapist, but a married girl child aged between 15 and 18 could not even do that”
Petition filed by an NGO, ‘Independent Thought’ has challenged the exception. The issue was, when a man has sexual intercourse with a girl below 18 with or without her consent is rape, but how can when a man does so with his wife who is a minor aged below 18 be not rape
Court held that the exception clause to rape, carved out in the IPC, created an unnecessary and artificial distinction between a married girl child and an unmarried girl child. The clause took away the right of a girl child to bodily integrity and reproductive choice. It had even the effect of turning a blind eye to trafficking of the minor girl children in the guise of marriage.
Though child marriage is prohibited, it is not automatically void, under India’s Civil laws. The court criticised the fact that Protection of Child Marriage Act makes child marriage only voidable, that is, the burden is placed on the child bride to approach a court to declare her marriage a nullity. She has to do this within two years of attaining majority, that is by the time she is 20 years old. If not the marriage continues.
It is a progressive judgement. It harmonises the IPC with other anti-child abuse laws like POCSO. The judgement reinforces the fact recognised by other laws that a child is not in a position to grant or not grant consent
According to a UN report India has the highest number of unregistered children under age five between 2000 and 2012 and the second highest number of child marriages. 46% of South Asian girls marry by 18. Almost half of all girls in South Asia marry before the age of 18. One in five girls is married before the age of 15. These are the highest rates in the world. “These figures confirm that child marriage is rooted in gender norms and in expectations about the value and roles of girls” reported UN. The highest rate of child marriage is in Bangladesh where two out of every three girls marry before the age of 18, followed by India. Among Indian States, Rajasthan had the highest ratio of minor girls married off in 2011. As per the data of National Family Health Survey, 46% of women between 18-29 years in India are married before the age of 18. About 23 million child brides are there in India
In court Union of India took a stand saying that such marriages should not be considered rape as such marriages are a reality in India. It is of course contrary to the stand of the Centre from Beti Bachao and Beti Padhao. However Union of India drew criticism. Justice Lokur said, “Union of India cannot be oblivious to the existence of the trauma faced by a girl child who is married between 15 and 18 years of age or to the three pro-child statues and other human rights obligations. The government tried to somehow legitimise child marriage”
As the court rightly observed the child marriage is the fastest means of trafficking in India. Till the date of the judgement it was a kind of legal trafficking under the exception clause of Section 375.
Judgement not only will stop child marriages, it will also promote the education of girls in India. As no girl can be married to any one till 18, many parents will be encouraged to send the daughters to school. Thus it will lead to women empowerment and increase of national assets. Of course law alone cannot stop child marriages in India. The strict implementation of the law/judgement is needed. Unless tree wings of Democracy-Parliament, Executive and Judiciary work hand-in-hand law will remain only on the pages for ever.
Some apprehensions arise from various corners as I received many phone calls asking how this judgement will affect personal laws which are held dear to the heart of each religion. Undisputedly this judgement is binding on all religions in India. It will over rule personal laws in this matter. It is the responsibility and duty of every parent to abide by the judgement/law of the land. Here after, no girl below 18 can be married off to any man by any parent belonging to any religion. It is applicable to Muslim personal law as well.
(Published on 16th October 2017, Volume XXIX, Issue 42)