Insights into Editorial: Complicated terms of engagement
On October 17, the Supreme Court read down the marital rape exception for married girls between the ages of 15 and 18.
The judgment is prospective in nature.
The court held that since sexual assault in marriage is already a crime under the Protection of Children from Sexual Offences Act, 2012 (POCSO), it is discriminatory and arbitrary to suspend the protection of the rape law for these underage married girls.
Laws of the land for the rescue of Girl child
- The Prohibition of Child Marriage Act of 2006
- The Prohibition of Child Marriage Act, 2006prohibits the validation of child marriages wherein a child means a person who if male has not yet completed 21 years, and if female not yet 18 years.
- Every child marriage, whether solemnised before or after the Act came into effect, can be made void by either the man or the woman within two years of attaining majority.
- Karnataka has passed a law making all child marriages void.
- Protection of Children from Sexual Offences Act
- POCSO privileges age to define to a child, wherein consent of a child is not a defence to sexual assault.
- Sexual consent is defined as an adult category.
- Hence, the argument that marriage presumes consent is not acceptable in the law on sexual assault of children.
- POCSO defines a child, (irrespective of gender) as a person under the age of 18 years, which prevents the “inducement or coercion of a child to engage in any unlawful sexual activity”.
- It mandates the Central and State governments to take all measures to ensure publicity to the provisions of the Act and obliges government officials to be trained in how to implement the Act.
- The brief of any government is to act to secure the best interests of the child since the Indian state acceded in 1992 to the UN General Assembly’s Convention on the Rights of the Child.
Why is Child marriages still practiced in India?
Child marriage is a specific form of customary practice arranged by parents or male community elders.
- These may be community marriages dictated by religious calendars or by caste customs.
- These are a distinct form of early marriages in which the consent of the patriarch of the family or elder determines the matrimonial fate of the child.
- Different customary and personal laws are existed wherein the age at which a girl can be married is lower than the legal age of marriage.
Feminists critiqued the prevailing conditions for Girl child
- Feminists have critiqued the custodial violence of the family and the state towards women who marry of choice.
- They have protested against familial and state violence towards daughters.
- At the same time, feminists have also insisted on bringing to the law recognition of sexual assault of children, irrespective of gender.
- They have also gendered the notion of childhood. Feminists have also elaborated how adolescence is gendered.
What is the conflict between IPC 375 and POCSO Act?
- Till now sexual intercourse with minor wife did not amount to rape if she was over 15 years of age.
- This was in the Indian Penal code (IPC) as an exception to Section 375 which is the law of the land regarding Rape.
- This exception meant that the husband was not charged with Rape even though child marriage is a crime. Hence under previous exception minor girl’s husband can have non-consensual sexual intercourse with her, without being penalised under the IPC, simply because she is married to him and for no other reason.
- This came into conflict with 2012 POCSO (Protection of Children from sexual offences) Act that defines ‘children’ as those aged below 18.
In a land mark judgement SC on October 11, 2017 criminalised the sex with wife aged between 15 and 18 years.
Why does the SC judgement a major relief to the child bride?
- Though child marriage is prohibited, it is not automatically void under India’s civil laws. The court criticised the fact that PCMA (Prohibition of Child Marriage Act of 2006) 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.
- The judgement is a major relief to the child bride because an unmarried girl child can prosecute her rapist, but a married girl child aged between 15 and 18 could not even do that due to the exception given to the Section 375, IPC.
What is the significance of SC judgement?
Traditionalists make an argument for de-criminalisation of compulsory sex within child marriage arranged by elders and dictated by custom. In this context, SC judgement is significant because-
- The Supreme Court decision makes it clear that sexual consent can only be given by an adult woman of 18 years.
- In other words, consent to sex in underage marriage cannot be assumed by the husband nor can parents give such consent on behalf of the underage minor.
- Child marriage has historically cast a shadow over rape law reform in India.
- The Supreme Court judgment rightly reversed the position that the jurisdiction of sexual impunity of husbands must lie with customary or personal law through the marital rape law exception.
State’s argument against SC judgement
State argued that
- Marriage presumes consent;
- Compulsory sex in child marriage is protected by customary or personal law;
- Husbands of child brides must have impunity from the rape law;
- Poverty and lack of development means compulsory sex in child marriage must be de-criminalised.
However, the Supreme Court set aside these arguments.
The question of sexual consent should be an Individual choice
The question of sexual consent is clearly one that must lie with the individual woman.
- Parents, elders, political parties, priests or vigilante groups should not be permitted to force women, adult or minor, into marriage or compulsory heterosexuality.
- The Supreme Court rightly holds that the ‘the girl child must not be deprived of her right of choice’.
- The right to choose, which is free and unfettered, includes freedom from parental pressure to marry early, freedom from forced marriages, freedom of choice of sexual orientation, and freedom to find self-fulfilment through study, work, profession, vocation or talent.
- Forcing young persons into compulsory heterosexuality should be seen as a social evil.
- A child remains a child whether she is described as a street child or a surrendered child or an abandoned child or an adopted 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.
- Union of India also cannot be unconscious to the existence of the trauma faced by a girl child who is married between 15 and 18 years of age.