On August 10, the Centre told the Supreme Court that a man forcibly having sex with his minor wife, if she is above 15 years of age, should not come under Section 375 (rape) of the IPC. The government was responding to a plea filed before the court by an NGO, Independent Thought.
The NGO had urged that since the Protection of Children from Sexual Offences Act, 2012 (POCSO) does not make an exception in case of the marital status of the child and is applicable to every child below 18 years, Section 375 should include all minors.
The definition of penetrative sexual assault under POCSO and Section 375 of the IPC is the same. The punishment in POCSO and in Section 375 ranges from ten years to life imprisonment and also includes a fine.
The Centre, through its lawyer Binu Tamta, resisted the NGO’s plea. Tamta argued that child marriages were a reality in India and that “the institution of marriage must be protected. Otherwise, the children from such marriages will suffer.”
The Centre has also taken the position of allowing marital rape of minors in the garb of the ‘sanctity of marriage’.
Many girls who have been victims of child marriages have faced multiple forms of violence without much respite throughout their lives. There is ample evidence to show that the married lives of children are filled with insults and humiliation, enveloped with loneliness and hostility at every step. They are subject to control and fear that fills them with anxiety and hopelessness. They resign to their fates, which ultimately pushes them into depression and an edge of insanity.
The perils of child marriage
A married woman in India works tirelessly – she fetches water, sweeps, washes clothes and utensils, cooks, walks long distances for labour or tends to sheep and cattle. She reaches home at dusk to continue with the repetitive chores of domestic work. She hardly has any time to rest, talk to friends or neighbours and is taunted if found sitting idle. She is confined to the limited space of her family and work. In both the places, she has no say and has to live like a well-oiled mindless machine. This deadly monotony leaves no space for leisure, thinking or even hoping for a change for the better.
A girl’s body is seen as an object, something that belongs to everyone but her. There is scant respect for her being and personhood. Not having children is seen as a fault and incapacity of the girl. She is condemned and is ostracised as a ‘barren woman’. That she has no children is a reason to be cruel to her and exercise control. If she gives birth to a girl, she is boycotted by her husband and in-laws for months together. In a way, the birth of a girl is a justification for torture and makes her more vulnerable. So does that mean she would have been respected and looked after if she had given birth to a boy? It seems not. Even when she gives birth to a boy, she is scolded and abused. There is hardly any sympathy for the mother even if she loses her child while giving birth. She is not even allowed to grieve over her loss. Instead, she is blamed for letting down her husband and is cursed for not being able to contribute to the family’s progeny. All sympathies are for the father. For a young girl who has not grown fully, pregnancy is a big risky. Between the age of 15-18 years, she goes through multiple child births marred by miscarriages; it is a miracle that she and her baby survive.
Child marriage makes way for marital rape, torture, mental and physical violence, depression and suicidal tendencies. It also affects the appetite, exhausts the soul and weakens the body.
Such physical, mental and sexual violence of girls is backed by social approval as it is ‘integral to the institution of child marriage’. It assumes inviolability as the marriage is bound by rituals, religious invocations and the blessings of God. Since the legislative framework too does not make child marriages totally void, the inherent violence now has a legal sanction. Child marriage assumes a sanctity of its own and the subjugation of the girl is complete. It thus becomes almost impossible for any child to exercise agency and seek annulment of her marriage as per the Prohibition of Child Marriage Act, 2006.
In this sense, child marriage is actually ‘a solemnised invasion’ of a girl, her bodily integrity, her sexuality and her mind. Child marriage condemns a girl to a daily life in a war zone fought between unequals, with predictability on who would be conquered and finished. It is not a social evil caused by the country’s tradition and culture. It is a form of exploitation that takes advantage of the tradition and culture. There is nothing sacred about child marriage. It has to be made void once and for all.
Putting an end to the ‘solemnised invasion’ cannot be resolved through slogans, tokenism and cash transfers to postpone marriage. It has to be resolved by the state education, health services, nutritional support and the protection to girls. The state cannot pretend that the marital home is a safe place for the child and thus, abdicate its responsibility towards protecting her.
A sense of urgency is required to bring about a transformation in their lives. Giving freedom to girls is a political issue and an ethical compulsion requiring a wholehearted state commitment and a moral renaissance.
Shantha Sinha is a former head of the National Commission for the Protection of Child Rights.