India’s Supreme Court Ruling Takes Major Step in Protecting Child Brides
November 1, 2017
Last month, in a landmark ruling to protect child brides, the Supreme Court of India declared that sex with a minor girl under the age of 18 would be considered rape regardless of whether the man is her husband or not. After prolonged deliberations, the Court finally put to legal rest the confusion over the age of consent to sexual relations in the context of marriage, namely, child marriage. This is a major step forward in protecting victims of child marriage in India, and possibly discouraging the practice.
India’s recently released census data reveals that nearly 12 million Indian children were married before the age of 10 years. As many as 65 percent of these married children were female. Despite the disturbingly high rate of child marriage in India, ambiguities and anomalies in the different laws relating to women and children in India have contributed to the lack of clarity on the age of marriage and consent to sexual activity.
In 2006, the Prohibition of Child Marriage Act set the age of marriage at 18 years for girls, and 21 for boys. As per the law, child marriage is punishable with both imprisonment and a fine, as long as a complaint was filed within one year of the marriage and the marriage itself was considered “valid as performed.” The prevalence of child marriage, however, has continued unabated not only because of poor implementation of the law, but also because of deeply entrenched cultural and societal norms that enable the practice to continue with impunity.
Though the Child Marriage Act addressed the issue of a child marriage more broadly, it did not address sex with minor brides. Section 375 of the Indian Penal Code (IPC) prescribes the age of consent for sexual intercourse as 18 years, meaning that any person having sexual intercourse with a girl child under 18 would be statutorily guilty of rape even if the sexual activity was with her consent. Unfortunately, the same provision carves out an exception whereby sex with a wife between the age of 15 and 18 years is not considered rape. Therefore, the law implied that, 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. As per the Court’s opinion, this effectively “denied such a girl the right to bodily integrity and to decline to have sexual intercourse with her husband.” This was a grave injustice to adolescent girls who were expected to be sexually active before reaching the age of consent.
Adding to the confusion is another law addressing the issue of sexual offences against children—the Protection of Children from Sexual Offences (POCSO) Act, 2012. This legislation was introduced to address the expanding nature of crimes against children. Under this law, sexual intercourse with a minor girl child (under the age of 18)—regardless of consent—amounts to rape. Therefore, a collective reading of the IPC and the POCSO Act, indicated that a married girl between 15 and 18 years of age could be a victim of aggravated penetrative sexual assault under the POCSO Act, but not a rape victim under the IPC if the rapist is her husband.
The Court’s latest decision rules that this unnecessary and artificial distinction contained in the IPC between a married girl child and an unmarried girl child was “arbitrary, discriminatory, and not in the best interest of the girl child.” According to the Court, the distinction is contrary to the spirit of the Indian Constitution, specifically Article 15(3) [discrimination on basis of sex, caste race and place of birth] and Article 21 [right to life] of the Indian Constitution. In short, India now explicitly criminalizes sex with a minor girl, regardless of marital status.
Child rights advocates, gender experts, and civil society in general have welcomed the Court’s decision as a step forward toward empowering and protecting girls. However, one must also acknowledge that implementation of such laws is always an uphill battle, particularly when the onus is on the child bride herself to step forward and lodge a complaint against her husband. Even if a child bride finds the courage, is supported by her in-laws or family, and wishes to file a complaint, there is the possibility that local police officers may refuse to file the case, or try to dissuade her and push her into coming to a compromise with the family or community.
It is still too early to tell whether this legal clarification will ultimately impact the alarming rates of child marriage. Legislation alone cannot curb this practice which has existed in Indian society for centuries. Addressing it will also require social change, through the elimination of discriminatory practices against women and girl children, which can only come about through girl’s education, promotion of women’s rights and empowerment, and community-level advocacy.
For now, the judgment should be celebrated for what it is—an acknowledge that things desperately need to change and a long-pending clarification of the misconception about the closure of childhood, and the beginning of adult life. The burden is no longer only on the child bride to step forward and fight for her rights, but also on civil society in India, which must continue its work toward ensuring greater dignity and security for women and girls.
Diya Nag is The Asia Foundation’s senior program officer in India. The views and opinions expressed here are those of the author and not those of The Asia Foundation or its funders.
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