A blow for child rights

The Supreme Court rules that sex with a minor wife, despite consent, is rape, but activists call for a more realistic perspective to prevent child marriages and also to uphold the rights of young couples.

Published : Oct 25, 2017 12:30 IST

A seven-year-old  bride, after her wedding, waits in a truck to leave for her in-laws’ place at Biaora, about 135 km from Bhopal. A file picture.

A seven-year-old bride, after her wedding, waits in a truck to leave for her in-laws’ place at Biaora, about 135 km from Bhopal. A file picture.

IT is well documented that a good percentage of Indian women get married under the age of 18, compromising their basic rights to evolve and develop as individuals. The Rapid Survey on Children commissioned by the Ministry of Women and Child Development in 2013-14 estimated that such marriages had declined from 47.4 per cent according to the National Family Health Survey-3 (2005-06) data to 30.3 per cent. The fact sheet of NFHS-4 for 2015-16 indicated that child marriages had declined to 26.8 per cent but it showed that in rural areas marriages of women below the age of 18 constituted 31.4 per cent of the total, much above the national average. The percentage of such marriages was higher than the national average among the Scheduled Castes (34.9 per cent) and the Scheduled Tribes (31 per cent). Child marriages were prevalent in nearly 44.1 per cent of families with a low wealth index, an indication that poverty was a dominant factor in child marriages.

Early marriages result in multiple child births and often are the reason for maternal mortality, infant mortality and reproductive health challenges. The application of the rule of law to prevent child marriages has been somewhat limited. A strong correlation exists between child marriages in States that have lower literacy levels for men and women in general. However, various studies have shown a stronger correlation between child marriages and poverty, indicating that the law by itself was inadequate to address the challenge unless accompanied by government interventions at multiple levels.

In what is seen as a blow for women’s rights and the rights of the girl child, a two-judge bench of the Supreme Court has held that sexual intercourse by a man with his under-18 wife would amount to rape. This ruling, delivered by Justices Madan B. Lokur and Deepak Gupta, in two separate judgments, has, in effect, questioned the rationality and validity of the exception provided in the Indian Penal Code (IPC), which validates intercourse of a man with a girl who could be between the ages of 15 and 18 provided she is his wife. The petitioner, a child rights group, approached the court in 2009 with the plea that as Section 375 of the IPC laid down the age of consent for sexual intercourse as 18 years, any person having sexual intercourse with a girl under 18 was committing rape. If a girl, aged between 15 and 18 was married to a man, Exception 2 under Section 375 allowed him to have sex with his wife “without her consent”. The petitioner pleaded that as a girl did not cease to be a child under the age of 18 and since Exception 2 ran contrary to the beneficial intent in Article 15 (3) of the Constitution, which enabled Parliament to make special provisions for girls and women, the sex “without her consent” exception in Section 375 should go.

The court’s attention was drawn to the Law Commission of India’s (LCI) 84th report titled “Rape and allied offences: Some questions of substantive law, procedure and evidence”, submitted in 1980, which had pointed out that marriage with a girl below 18 was prohibited under the Child Marriage Restraint Act (CMRA), 1929 (although not void in personal law), and so sexual intercourse with a girl under 18 should also be prohibited. The minimum age of marriage for girls as 18 was laid down in 1978. The LCI’s 172nd report (submitted in 2000) recommended the retention of the exception in Section 375, maintaining that sexual intercourse by a man with his wife, provided she was not below 16 years of age, was not tantamount to sexual assault.

Taking a conservative position, the LCI’s 172nd report held that removing Exception 2 from Section 375 “may amount to excessive interference with the marital relationship”. However, the age of the child was not raised from 15 to 16 in Exception 2 as recommended by the LCI. In fact, the counter affidavit of the Union government had held that the age had been kept at 15 to give protection to the husband and wife against criminalising the sexual activity between them. Interestingly, a child bride under the Hindu Marriage Act could nullify her marriage if she was married under the age of 15. There are provisions in the Prohibition of Child Marriage Act (PCMA), 2006, that allow for annulment of a child marriage within two years of the minor attaining majority. The two judgments totalling 127 pages held that the exception provided in Section 375 was arbitrary, unreasonable, unjust and unfair. Sexual intercourse with a girl below the age of 18 was rape, the judgment said. The exception “created an unnecessary and artificial distinction between a married girl and an unmarried girl child” and “has no rational nexus with any unclear objective sought to be achieved”, it stated.

The “exception was capricious, whimsical, violative of the rights of the girl child, not fair or just and violative of Article 14, 15 and 21 of the Constitution of India”, the court said Moreover, it was inconsistent with the provisions of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

Referring to various studies, national and international, on the debilitating effects of early marriage, the court observed that there was a strong established link between early marriage and sexual intercourse with a married girl child between 15 and 18 years of age. There was a plethora of material, it observed, to clearly indicate that sexual intercourse with a girl child below the age of 18 (even within marriage) was not advisable for her for a variety of reasons, including her physical and mental well-being and social standing.

The judgment observed that the enactment of the PCMA showed that Parliament was not in favour of child marriage but was somewhat ambivalent about it. The court pointed out the contradictions within various laws relating to the prevention of child marriage. While sexual intercourse with a child was punishable under the POCSO Act, it was not so under the IPC. Although child marriages were prohibited and criminalised, they were not declared void. The preamble to the PCMA, the judgment noted, which held that sexual exploitation and sexual abuse of children were heinous crimes that needed to be addressed effectively, was in conflict with Exception 2 of Section 375 of the IPC “which effectively provided that the sexual exploitation or sexual abuse of a girl child was not a crime, let alone a heinous crime”. In fact, it legitimised the activity if the sexual abuse was by the husband.

International conventions such as the United Nations Convention on the Rights of the Child made it obligatory on the part of the government to take steps to “prevent the coercion of a child to engage in any unlawful sexual activity”. Under the POCSO Act, the rape of a married girl child would constitute a form of aggravated penetrative sexual assault, which was punishable with 10 years’ imprisonment or a fine.

Leading cause of death

A more recent collaborative study and statistical analysis on the impact of child marriages and early childbirth on the health of girls by organisations such as the National Commission for the Protection of Child Rights (on the basis of Census 2011 data) had shown that girls between 15 and 19 were more likely to die at childbirth and pregnancy than older women, making pregnancy a leading cause of death in developing countries. Girls from S.C. and S.T. communities were on an average 10 per cent more likely to give birth earlier than girls from other castes. The analysis, released in June 2017, found that girls who were likely to have a child by 19 years were from the poorest groups, with less educational aspirations, from rural areas, had least educated mothers, and were themselves less likely to be enrolled in school between the ages of 12 and 15.

The LCI’s 205th report on “The proposal to amend the Prohibition of Child Marriage Act, 2006, and allied laws”, which was submitted to the Law Ministry in 2008, made several recommendations for changes in the PCMA and allied laws. While hearing a writ petition in 2006, the Supreme Court sought the assistance of the Law Commission to look into the definition of a child under different laws. The Law Commission looked at various aspects, including the implications of child marriage from various dimensions and also the various laws relating to age of consent and age of marriage in different countries. It examined the CMRA and the age of marriage and age of consent for sexual intercourse and recommended that child marriage below 18 be prohibited for boys and girls, marriage below age 16 be made void, and marriage between 16 and 18 be voidable. More importantly, it recommended that the age of consent should be 16 for all girls, regardless of marriage.

The writ petition, which was filed by the Delhi State Commission of Women and the National Commission of Women, had said that while children were defined as persons under 18 in the Indian Majority Act and Juvenile Justice (Care and Protection) Act, 2000, it was 18 for girls and 21 for boys in the CMRA. The IPC had no definition for “child”. The petitioners pointed out that Sections 5 and 11 of the Hindu Marriage Act did not give the court the authority to declare a marriage void on the grounds that either of the parties was under age and the Exception to Section 375 exempted the husband from the charge of rape if the wife was not under 15 years of age. They pleaded that this was in contradiction with the CMRA, which disallowed child marriage but did not totally invalidate it. The petitioners said that there should be a uniform definition of a child in all laws in order to protect children from abuse. Marriages under 18 should be declared void as such marriages could only be “coerced and no full or informed consent could be given by a person under eighteen”. The petitioners did not touch on the issue of consensual sexual intercourse between persons under 18. The Law Commission report, however, said that the age of consent should be 16 for girls irrespective of whether they were married or not. The Supreme Court bench of Justices Lokur and Gupta did not make this distinction.

Choice relationships

The Supreme Court advocate Kirti Singh, who has been dealing with women’s issues and laws relating to women, was a part-time member of the committee that drafted the LCI report on child marriage. She welcomed the Supreme Court order for the removal of Exception 2 from Section 375 of the IPC but felt that aspects relating to the prevalence of voluntary consensual sex among young people needed to be considered. She told Frontline that the “judgment rightly made no distinction between unmarried and married girls and had enumerated the various ills that befall a child marriage”. However, she felt that an exception should have been carved out for relationships between young couples whether they were married or not. “Penalising these relationships in a country where choice relationships and marriages are dealt with so brutally, where inter-caste marriages or relationships face violent repercussions and couples are hounded usually by the girl’s family, where false cases are filed against the boys and their families and girls are routinely pressurised to agree to the filing of such false cases, and where charges of rape can be so easily levelled with a minimum 10 years of imprisonment, I think the decision of the court to criminalise sexual intercourse with girls under eighteen can be counterproductive,” she said. There was a need, therefore, to distinguish between a much older person marrying a young girl and a young couple in a consensual relationship. In the past, women’s organisations have argued that the proximity rule should apply to young marriages where the boy was not five years older than the girl.

The best way to stop child marriages, she said, was to enforce the provisions of the PCMA and at the same time ensure that the rights of the girl and the children born from such marriages were safeguarded. The difference in the ages of marriage for men and women as 21 and 18 was not based on any scientific understanding, she said, adding that it was highly discriminatory. The LCI report had maintained that there was no rationale for different ages of marriage for boys and girls. It had recommended that marriages below 16 be made void; between 16 and 18, they be voidable at the option of either party; and the Exception to Section 375 be deleted, which would ensure that the age of consent for sexual intercourse for all girls, married or not, would be 16.

“At the moment, the government had done very little to stop child marriages where they are recurring and that is where the problem lies,” she said. Protecting the rights of the child as well as the right to choice, of bodily integrity, were in fact fundamentally a right to life, she said.

Justice Lokur, in his judgment, made it clear that he was not looking at marital rape of a woman aged 18 and above as that issue was not before him. “Therefore, we should not be understood to advert to that issue even collaterally,” he stated.

Kirti Singh said it was high time marital rape was recognised by the law, especially since violence within the family by the husband on his wife was recognised through Section 498A of the IPC. Therefore, the resistance to recognising that sexual assault could take place within a marriage was inexplicable. “It is totally wrong to presume that women would bring in false charges as experience shows that Indian women tolerate a lot of violence and complain only when they cannot get any redress. To say that criminalising marital rape would result in the breakdown of marriage is wrong. Any marriage based on violence is unacceptable to women and also to a civilised society,” she said.

Women’s organisations such as the All India Democratic Women’s Association and Sakshi had demanded laws dealing with marital rape more than 10 years ago.

It is evident that a range of factors is responsible for the prevalence of child marriages, poverty and dowry being among the more prominent ones apart from customs and tradition. However, the principal responsibility of preventing such marriages in the interests of the girl child and boy child lies with the government. A realistic assessment should include considering the prevalence of choice relationships that occur much below the age of 18. The rights of young couples are as important as the rights of the child bride. To this extent, revisiting the recommendations of the LCI’s 205th report may be a realistic move before criminalising all relationships under 18.

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