Sav­ing child brides

Not the rea­son­ing but the im­pli­ca­tions of the rul­ing on child mar­riage are a cause for worry

The Hindu - - EDITORIAL -

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. Un­der the In­dian Pe­nal Code, it is an of­fence to have sex with a girl be­low 18 years of age, re­gard­less of con­sent. How­ever, it made an ex­cep­tion if the girl was the man’s wife, pro­vided she was not be­low 15. In other words, what was statu­tory rape is treated as permissible within a mar­riage. By read­ing down the ex­cep­tion to limit it to girls aged 18 and older, the court has sought to har­monise the var­i­ous laws in which any per­son un­der 18 is a mi­nor. Over­all, the judg­ment is in keep­ing with the re­formist, and in­dis­putably cor­rect, 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.

As a move to strengthen the fight against child mar­riage and help stricter en­force­ment of the Pro­hi­bi­tion of Child Mar­riage Act, 2006, the judg­ment can­not be faulted. But the prac­ti­cal im­pli­ca­tions of the judg­ment are wor­ry­ing. Are all men mar­ried to girls be­tween the ages of 15 and 18 to be con­demned to face crim­i­nal cases as rapists? Given the preva­lence of child mar­riage in this coun­try, it is doubt­ful whether it is pos­si­ble — or even de­sir­able — to im­ple­ment the statu­tory rape law uni­formly in the con­text of mar­riages. What, for in­stance, does this mean for those mar­ried un­der Mus­lim per­sonal law, which per­mits girls be­low 18 to be mar­ried? 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. Treat­ing all be­low 18 as chil­dren may be good for their care and pro­tec­tion, but whether 18 is the right age for con­sent in this day and age re­mains a moot ques­tion. The state’s ar­gu­ment that given the wide­spread preva­lence of child mar­riage it is not pos­si­ble to re­move the ex­cep­tion may be flawed from a for­mal stand­point, but its con­cerns about the im­pli­ca­tions of the ver­dict must not be un­der­es­ti­mated.

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