In­dia rul­ing on un­der­age mar­i­tal sex ‘will be dif­fi­cult to en­force’


A rul­ing by In­dia’s supreme court that deems all sex­ual re­la­tions with wives be­low the age of 18 to be rape is wel­come but will prove dif­fi­cult to en­force, ex­perts say.

The ver­dict, pro­nounced on Wed­nes­day, re­solved a con­flict within the coun­try’s le­gal sys­tem. On the one hand, the le­gal min­i­mum age for mar­riage is 18 years for women, and 21 years for men. If ei­ther part­ner is be­low the le­gal age, then the union is con­sid­ered child mar­riage, which is banned – with caveats – in In­dia.

But an­other law also per­mit­ted hus­bands to en­gage in sex­ual re­la­tions with their wives as long as they were older than 15.

“It made no sense,” said Kriti Bharti, who runs the Jodh­pur-based non-profit Saarthi Trust that works to an­nul child mar­riages.

Although child mar­riage has been re­stricted by law in var­i­ous ways since 1929, the most re­cent leg­is­la­tion, from 2006, left enough loop­holes and was en­forced weakly enough for the prac­tice to con­tinue.

A cen­sus in 2011 found that at least 12 mil­lion Indian chil­dren un­der the age of 10 were mar­ried, of whom 7.84 mil­lion were girls.

Data from the 2011 cen­sus also showed that 30.2 per cent of mar­ried women had wed be­fore turn­ing 18, down from 43.5 per cent in 2001. How­ever, the per­cent­age of girls en­ter­ing mar­riage be­tween the ages of 15 and 18 rose from 26.7 per cent in 1998-1999 to 29.2 per cent in 2005-06, ac­cord­ing to other gov­ern­ment data.

The 2006 law deemed a child mar­riage void only if the child was co­erced or en­ticed into the union, and if they vol­un­tar­ily filed a vic­tims pe­ti­tion for an­nul­ment. In such cases, the hus­bands, of­fi­cials who solem­nised the mar­riage, and the fam­i­lies en­abling the mar­riage are all li­able for prose­cu­tion, with a max­i­mum penalty of two years’ im­pris­on­ment and a fine of 100,000 ru­pees (Dh5,640).

In re­al­ity, Ms Bharti said, it is dif­fi­cult to en­cour­age girls to come for­ward. The law still does not re­gard every child mar­riage as crim­i­nal, which it should, she said.

“This means we’ve failed,” she said. “It means the di­rec­tion we’re work­ing in is not cor­rect. We aren’t work­ing on chang­ing mind­sets at all.”

Ms Bharti wel­comed the court’s ver­dict.

The penal­ties as­so­ci­ated with rape are much stricter – prison sen­tences of up to 20 years, de­pend­ing upon the sever­ity of the crime – and may serve as a pow­er­ful de­ter­rent.

But she also pointed to the dif­fi­cul­ties that lay ahead. Con­vinc­ing girls to come for­ward about forced mar­riage is dif­fi­cult enough. “In ru­ral ar­eas, we can’t get peo­ple to even talk about sex or sex­ual abuse,” she said. “The minute it comes up, they quit the dis­cus­sion. Girls will feel shy to talk about this, let alone re­port it.”

Ko­mal Gan­otra, a di­rec­tor at the non-profit Child Re­lief & You, pointed out that the law’s fun­da­men­tal loop­holes re­mained. The new judicial de­ci­sion, she hoped, will “change the le­gal land­scape by bring­ing about re­quired amend­ments in the child mar­riage leg­is­la­tion and re­vamp strate­gies to pre­vent and pro­hibit child mar­riage”.

Ms Bharti said the court rul­ing was only a be­gin­ning. “The train has de­parted. Now we have to cross many sta­tions be­fore we reach the des­ti­na­tion we’re aim­ing for.”

The rul­ing was only a be­gin­ning. The train has de­parted. We have many sta­tions be­fore we reach the des­ti­na­tion KRITI BHARTI Saarthi Trust

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