SC terms sex with minor wife as rape: Govt will have to fight entrenched mindsets to implement ruling

India has the highest number of child brides in the world with numbers estimated to be touching over 230 lakh in 2016. It is estimated that 47 percent girls in India are married before their 18th birthday. The rates of child marriage vary between states and are as high as 69 percent and 65 percent in Bihar and Rajasthan respectively. However, while there are fewer girls marrying before the age of 15, rates of marriage have increased for girls between ages 15 to 18.

Representational image. AFP

Representational image. AFP

There are several factors that force parents to marry their daughters at a young age. Customary practice, growing poverty levels and concern for women's and girls' safety are forcing parents to marry below 18 daughters. Controlling a girl’s sexuality also plays an important role in child marriage as parents try and minimise the dishonour associated with improper sexual conduct causing marriages to be arranged as the girl enters puberty.

The Supreme Court’s landmark judgment criminalising sex with a minor wife below the age of 18 states unequivocally that any child who has not attained 18 years is "a child and remains a child whether she is a married child, unmarried child or a divorced child or a separated child or a widowed child".

How exactly the SC wants to see this judgment being implemented is a moot point. The numbers involved are large and require a huge societal churning. Recent census data reveals that nearly 120 lakh children were married below the age of 10 years from which 78.4 lakh were females. Census data further revealed that 84 percent of these children were Hindus and that eight out of ten of these illiterate children who were married were girls.

With girls of 16 years and 17 years of age also being treated as children, the question of consensual sex with married girls under the age of 18 years no longer arises. The law, however, will be implemented in a prospective and not a retrospective manner.

The question before the Ministry of Women and Child Development is just how they expect to implement an order of this magnitude. Senior bureaucrats refuse to comment on the judgment saying that it needs to be studied in detail but Rishi Kant who is heading the anti-trafficking NGO Shakti Vahini believes that "law enforcement agencies will have to fight the evil of child marriage on a war footing across India and especially in the states of West Bengal, Haryana, Maharashtra, Madhya Pradesh, Rajasthan and Bihar where this problem is rampant in the rural areas".

Kant cautioned: "The rape law is now a non-bailable offense and can result in a maximum sentence of life imprisonment. The government will have to launch a massive educational scheme to inform the public at large about the serious consequences of this new law".

Said Kant, "The first respondents in a village are the Anganwadi workers who are the village backbone. Along with the village sarpanch and panchayat, they will have to be educated about this order. We will also need millions of young people from our towns, especially students of sociology and anthropology, to become veritable messengers of change to inform parents and their children about the new law. Urban India has to become the change makers and this must happen with a simultaneous strengthening of our educational system".

Examining the nitty-gritty of this judgment, Enakshi Ganguly, co-director of HAQ Centre for Child Rights welcomes the SC order by justices Madan B Lokur and Deepak Gupta who have resolved the earlier anomaly of Exception 2 in Section 375 where if a husband married a girl child between 15-18 years of age, he could have non-consensual sexual intercourse for which he would not be penalised. With the present judgment, this exception to 375 has been removed and the age of sexual intercourse raised from 15 to 18 years.

But Ganguly wonders whether this new directive has opened a fresh can of worms? Since the law on child marriage, the Child Marriage Prohibition Act 2006 remains the way it is, it also means that any under-age marriage that has taken place remains valid and voidable.

"We can only hope that doctors do not refuse to deliver children or offer medical help in case a girl in a child marriage comes to them, for fear of mandatory reporting? Who else will be responsible for mandatory reporting in case of sex within a child marriage — will it include the parents who may have been responsible for the child marriage in the first place? Will they be complainants because they disapprove of the relationship between their daughter and her partner?" Ganguly wondered.

Looking at the broader picture, Ganguly warned that there were major concerns with the age of consent being 18 as "far too many young people were getting caught in the criminal justice system for having had consensual sex. And with minimum sentencing, there is no escape for boys and young men from incarceration".

She further pointed out, "Child marriage is a social evil, and it’s forced and perpetuated by adults. They are the ones who must be penalised. And not the children. Unfortunately, simply criminalising sexual activity amongst young people ends up penalising the young people and not the perpetrators."

Akhila Shivdas who heads Centre for Advocacy and Research believes that the new law will require the government to come up with "a slew of administrative measures in the areas of education, child protection and job creation especially at a time when existing government entitlements are reaching fewer and fewer people".

Jaipur-based activist Kavita Srivastava points to the example of hundreds of girls between the ages of 18 and 20 years who are seeking to get their marriages annulled because they were forced into child marriage in the state of Rajasthan.

" These girls are using a loophole in the law and they approach the SDM, their local sarpanch or other lower-rung bureaucrats demanding their marriages be annulled. Of course, such a move has its own fall out within their village. The parents of the girl will be isolated. There will be a meeting of the panchayat to discuss this matter but ultimately if the girl is adamant, her parents have no choice but to accept her stand," said Srivasatava.

Srivastava recently addressed a meeting of 150 girls who were attending a camp organised by the NGO Urmul. "When I asked the girls belonging to Class 10-12 who were attending the camp what that they wanted to do in their lives, their replies were varied. They wanted to become teachers, astronauts, doctors, and so on. They said they would continue with their agricultural work but they were unanimous in demanding they be allowed to study and become economically empowered," said Srivastava.

Welcoming the SC judgment, Shanta Sinha, former chairperson of the National Commission for Protection of Child Rights said forcing below 18 girls into marriage was akin "to snatching away their natural process of growth".

"As it is, many of these girls are highly anaemic because they come from economically deprived backgrounds. Their early marriages cause so much trauma. They have not even experienced adolescence and they are being forced into adulthood. After all, they are forced into sexual relationship and pregnancies for which they are ill-prepared," he says.

The new law is now in consonance with Protection of Children From Sexual Offences (POCSO) Act and the men will be tried under POCSO. Raping a child is an offense under POCSO and a child is defined as any person below the age of 18 years. As per Section 42A of the POCSO Act, the provisions of the act will effectively override the provisions of any other law. The earlier IPC had stated that married girls above 15 could not allege the specific charge of rape against their husbands. The recent verdict reads down this exception.

Sinha in the last twelve months had interviewed more than 80 girls who told him about their experiences as victims of child marriage. Each girl had revealed how she had faced tremendous amounts of violence from her husband and his family who forced her to work long hours without giving her adequate food or rest.

Activists emphasise that child marriage does not make for healthy mothers or for healthy babies. Sujata Madhok, a woman activist, said, "Child marriage is the most absurd form of arranged marriages."

Getting around entrenched mindsets is not an easy task. This was realised by the feisty Bhanwari Devi who in an effort to oppose child marriages in her village of Bhateri, located 45 kilometres south of Jaipur was gang-raped on 22 September 1992 by five upper caste Gujar men.

She has been fighting for justice ever since but in her own words, "I have not yet received justice with the district sessions court stating in his judgment that upper caste Rajput men rape lower caste men."

Her long and arduous fight for justice is symbolic of the task ahead for the government and society to change the entrenched mindset of the people.


Updated Date: Oct 15, 2017 16:22 PM

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