Insights into Editorial : Saving child brides — on SC ruling on sex with minor wife
The Supreme Court on Wednesday (October 11th, 2017) held that sexual intercourse by a man with his wife, who is below 18 years of age, is Rape.
With this judgment, the court ended the decades-old disparity between Exception to Section 375 IPC and other child protection laws like the Prohibition of Child Marriage Act of 2006, Protection of Children from Sexual Offences Act and Juvenile Justice Act, all which define a “child” as someone who is below 18 years of age. The court has sought to harmonise the various laws in which any person under 18 is a minor.
The 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.
A girl child below the age of 18 cannot be treated as a commodity having no say over her body or someone who has no right to deny sexual intercourse to her husband.
The harsh reality is that most of the child brides are even below the age of 15 years. There is a practice in many parts of the country where children, both girls and boys, are married off, even before they attain puberty. They are innocent children, who do not even understand what marriage is.
By ruling that marriage cannot be a licence to have sex with a minor girl, the Supreme Court has corrected an anomaly in the country’s criminal law.
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.
Human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance.
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 conflict between IPC 375 and POCSO Act?
In a land mark judgement SC on October 11, 2017 criminalised the sex with wife aged between 15 and 18 years.
- 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 January this year, Nobel Prize winner Kailash Satyarthi through his organization Bachpan Bachao Andolan appealed to the SC to clear the conflict between the IPC and POCSO Act.
- In its ruling the Apex court said the exception was arbitrary and violated the constitution and bodily integrity of a girl child.
- It had even the effect of turning a blind eye to trafficking of the minor girl children in the guise of marriage.
- The SC also asked the centre and States to take proactive steps to prohibit child marriages.
What is the Government’s stand on this issue?
The court slammed the government for trying to “somehow legitimise” the exception clause. The government had urged the court not to interfere with the exception clause as it was introduced keeping in view the age-old traditions and evolving social norms. The reason why Government wanted the exception to the Section 375 to stay is –
- The truth is that the minimum age of marriage of a female is 18 years and punishment has been provided in the Prohibition of Child Marriage Act, 2006 to discourage child marriages.
- However, it is also a fact that a large section of the Indian society, which is living in rural areas, continues to follow such practices as part of their tradition.
- As per the data collected in National Family Health Survey-III, 46% of women between 18-29 years in India were married before the age of 18.
- It is also estimated that there are 23 million child brides in the country.
- Hence criminalising such marriage with a serious offence such as rape would not be appropriate and practical.
Why are the implications of the ruling on child marriage a cause of worry?
The SC judgment is in keeping with the reformist view that early marriage is a serious infringement of child rights. The judges draw extensively on studies that demonstrate child marriage is a social evil that adversely affects the physical and mental health of children, denies them opportunities for education and self-advancement, infringes on their bodily autonomy and deprives them of any role in deciding on many aspects of their lives.
The practical implications of the judgment are worrying.
- Given the prevalence of child marriage in this country, it is doubtful whether it is possible to implement the statutory rape law uniformly in the context of marriages.
- Whether a person who is married a minor girl under Muslim personal law, which permits girls below 18 to be married, will be punished is still debatable.
- The age of consent under the IPC was raised in 2013 from 16 to 18 to bring it in line with the Protection of Children from Sexual Offences Act, 2012. However, the age above which marriage is an exception to rape was retained at 15, as fixed in 1940. POCSO criminalises even consensual teenage sexual activity and the latest ruling has brought this into the domain of marriage. A teenager could be prosecuted for a sexual offence under POCSO even if he was just a little above 18. In the same way, a teenage husband may now be threatened with prosecution for rape.
- Significantly, if boys under 18 but over 16 are charged with penetrative sexual assault under POCSO or rape under the IPC, which can be termed ‘heinous offences’, they could face the prospect of being tried as adults, according to the juvenile law as it stands now.
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. At this stage it is reminded of Shakespeare’s eternal view that a rose by any other name would smell as sweet — so also with the status of a child, despite any prefix.
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.