Supreme Court criminalising sex with minor wife ends conflict in rules, but verdict is too simplistic for a complex problem
Supreme Court order criminalising sex with minor wife ends conflict in rules on child abuse and child marriage, but it also makes sexually active adolescents vulnerable
On 11 October, scores of child rights and women's rights advocates rejoiced the decision of the Supreme Court criminalising sex with a minor wife and thereby clearing up the confusion on the conflict between the provisions of the Indian Penal Code and the Protection of Children from Sexual Offences (POCSO) Act. While it was certainly imperative that child brides be protected from sexual assault by their husbands, it is even more important to prevent them from being married off in the first place.
The Prohibition of Child Marriage Act (PCMA) enacted in 2006, prohibits marriage with a female below the age of 18 years, and with a male below the age of 21 years. The act also criminalises an adult male marrying a girl child, as well persons who permit, promote or solemnise such marriages.
However, where a child marriage has already been conducted, the act does not invalidate them but only provides the child with an option of nullifying the marriage any time after the marriage but within two years of attaining majority. The ambiguous PCMA provisions, at best, reflect the bitter political compromise carefully arrived at without upsetting any group, while at the same time giving the illusion of protecting child rights.
In direct contradiction to the PCMA, the Sharia law governing Muslim marriages permits women to marry upon attaining puberty or after the age of 15 years. While the Hindu Marriage Act, 1955, does not permit girls below the age of 18 to solemnise a marriage, it does not invalidate it either. Under the safeguard of these permissive personal laws, a vast number of children are made to enter into marriages which will not only deprive them of their basic rights but also expose them to sexual assault, domestic violence, and early and risky pregnancies.
Adding to this backdrop, the Protection of Children from Sexual Offences Act (POCSO) enacted in the year 2012 prohibits any form of sexual contact with a minor in absolute terms. The act does not permit any exceptions and does not recognise a child including where the child has consented to the act or even where the child is married. In the 11 October decision, the division bench of the Supreme Court reaffirmed this position holding that children who are married cannot be deprived of their right to be protected from sexual abuse.
The National Family Health Survey conducted for the year 2015-2016 reports that nearly 27 percent of all women aged 20-24 were married while they were minors. Although the percentage has greatly reduced from the year 2005-2006 where it stood at 46 percent, the figures still point out that nearly one in every four women is being married off before she turns 18. Worse still, 7.9 percent of women aged between 15 to 19 years were already mothers at the time of the survey.
The corresponding data on incidences of offences recorded under the PCMA Act depict that despite the high number of child marriages in the country, only a small fraction result in criminal prosecutions. The National Crime Records Bureau (NCRB) data indicate that only 795 violations under the PCMA were reported for the years 2013, 2014 and 2015 combined. These figures draw the unmistakable conclusion that a vast number of children in the country are living under a normalised environment of deprivation of their most basic rights.
This conflict has come before the judiciary in several instances, with different high courts being petitioned to decide upon the validity of these marriages, the custody of the child bride, and right of parents to solemnise the marriage of their minor daughter. The high number of child marriages, compounded with the existence of the conflicting laws have resulted in the high courts rendering different decisions in similar fact scenarios.
The Madras High Court in 2015 examined a matter in which a child marriage prohibition Officer filed a criminal complaint against persons who had arranged a marriage with a minor Muslim girl. In accordance with the PCMA, the district court passed a restraining order against the offenders, who in turn petitioned the high court seeking permission to conduct the marriage as it was permissible under the Sharia law. The Madras High Court struck down the request stating that the “court cannot and would not pass an order by virtue of which little girls become child brides".
In a contrasting case, the Delhi High Court in 2012 examined several matters concerning the validity of marriages solemnised with minor girls who had eloped on their own accord. Some of these girls were not just minor but even under 15 years of age. During the course of the proceedings, several of the child brides were forced to live in state institutions as they refused to go back to their parents stating that they would be forced to marry someone else.
The court upheld the validity of the marriages although it grimly observed that personal laws permitting child marriages have defeated the very purpose of the PCMA and gave a legal shield to parents and guardians perpetrating these marriages. However, the court decided that although these marriages were not invalid, the husband was not entitled to the custody of minor child. In particular, the court held that the husband cannot be permitted to consummate the marriage with a minor as it would greatly hinder their choice to invalidate the marriage at a later time.
Another bench of the Delhi High Court took a different stand holding a child marriage valid and returned custody of the minor child to her husband.
Disparate holdings on child marriage are also seen in other parts of the country with high courts giving varying opinions. In general, where child marriages have already taken place, the courts have been reluctant in holding them invalid due to the absence of strong legal provisions. However, where the courts have been petitioned to permit a child marriage yet to occur, the courts have denied citing the provisions of the PCMA despite permissive personal laws.
However, they have stood sharply divided on the issue of children staying in the custody of the husband. Despite the varying judicial pronouncements, the Supreme Court is yet to make a ruling clarifying the validity of these marriages and its impact on the rights of the child.
The recent Supreme Court decision criminalising sex with minor wife will certainly go a long way in dis-incentivising child marriages from taking place. However, by setting the magic number at 18, the effect of the decision in courts will precariously hinge on proving the age of the child to be below 18 years. Studies conducted by Centre for Child (CCL) and the Law in the National Law School of India University (NLSIU) on the working of special courts on the POCSO Act in Maharashtra, Karnataka, Delhi and Assam reveals that with the poor state of documentation, and absence of records, age determination is already one of the biggest hurdles in effectively prosecuting child sexual abuse cases.
In order to rectify the conflict, the state of Karnataka took an unprecedented step by introducing a state amendment to the PCMA Act rendering all child marriages invalid. While this is a commendable step towards protecting children from being forced into early marriages, it invariably harms children at the other end of the spectrum — those who enter willingly into child marriages.
While the exact rate of teenage elopement is unknown, current data on POCSO cases reveal that a large number of children engage in consensual sexual relationships. The studies conducted by CCL and NLSIU reveal that at least 20 percent of decided cases in Delhi, Assam, Maharashtra, and Karnataka filed under the POCSO Act are 'romantic' cases with parents of a minor girl filing complaints against husband or boyfriend. In such cases, as per the present law, the husband can face an imprisonment for a period of 10 years or more. Invalidating the marriage and criminalising the husband hardly seems a just solution in these cases.
Unfortunately, there is no simple solution to the problem. While permitting child marriages violates child rights, invalidating marriages and criminalising adolescent sex does the exact same thing. Black and white laws do not reflect the complexity of the issues and the law requires to innovate new remedies keeping in mind the ground realities. Given the unavoidable interplay between child marriage and child sexual abuse, it becomes critical that the conflicts between the laws that endanger the life, health and the wellbeing of children are soon resolved.
Shruthi Ramakrishnan is an advocate and independent legal researcher. She may be contacted at email@example.com
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