Criminalising Sex With Minor Wife is a Step Towards Securing Justice for India's Children

The judgment criminalising sex with a minor wife coincides with the International Girl Child Day, paving a new and historic path towards freedom and dignity for millions of married girls.

Supreme Court. Credit: PTI

Supreme Court. Credit: PTI

I met more than 80 girls this year who told me about their experiences as victims of child marriage. Each girl had been devastated through multiple forms of violence and control over her body, sexuality and mind. These young married girls are victims of unspeakable violence and are sunk in a black hole without redemption, given the pressure of work, hunger and starvation, ill health, repeated pregnancy and the associated risks, hostility in the marital home and loneliness. In this sense, the separation of body and mind, physical, sexual and mental violence is heuristic. These young girls live in a war zone day in and day out, fought between un-equals with predictability on who would be conquered and vanquished.

When I met Roja, she had left her husband and had been abandoned by her parents. She was pale, sick and thin, and begging for food from neighbours:

“I was determined to study and pleaded with my parents not to get me married but was forced into marriage when I was in class 9 and 14 years old. My dreams of taking the path of education collapsed. After marriage my world changed. I was new to agriculture work but was soon compelled to learn to pluck cotton, do cross pollination, sow paddy and do all the domestic work. Within two months of marriage, I got pregnant and had a miscarriage in the fourth month of pregnancy. I felt very weak. When I consulted the doctor she scolded me for becoming pregnant so young in my life and said that I should take care of my health. She said that my blood level is very low and so I must follow a good diet and be in bed rest.  But where is the time to rest?In a matter of two years I had four miscarriages. There was no medical help during any of the pregnancies. Each miscarriage took place at home quietly without any help from anyone or knowledge of anyone. After each miscarriage I had severe bleeding. I was over worked, had ill health and was totally devastated. There was nobody to take care of me in my husband’s house. I returned to my parents’ house recently and do not want to go back.”

Nagamma was only 12 when she was married to Mallesh, a divorcee and 22 years old at the time of their marriage. She said to me:

“I was studying in class 6 and got married even before attaining puberty. I was made to cook, sweep, fetch water, clean up the sheep shed that had 200 sheep, and my mother in law would not let me sit even for a minute. After six months I got my periods and since then my real worries began. My husband claimed me and forced himself on me. He bit me, scratched me and was so aggressive each night.  I was so scared. My mother in law would anxiously enquire if I had missed my period. I was under pressure from my mother in law and my husband’s sister who together beat me up with spite and started to accuse me of being barren and childless. I could not complain to anyone and was totally isolated. How could I tell my mother that I was being tortured when they gave six tolas of gold, silver and Rs. 1.5 lakh as dowry?

To their relief I was pregnant within four months after my puberty. I was very weak since I had no rest and no food to eat. I went home for my delivery. The doctor said that it was going to be very difficult. I had a caesarean and delivered a baby girl and so nobody was happy.

The entire family and my husband went to far off places with the sheep for days together. I joined them with my baby, tied her to a cloth cradle on the tree and managed somehow. There was no help at all. They were as abusive as ever. Within two months I conceived again. I was left behind frequently while the family went away with the sheep because I was pregnant. I had to work, earn wages, take care of my baby and do all the domestic chores all alone.  I had no support, no friends and became very weak. This time the doctor was very harsh towards me for being so careless. She said that I was anaemic and may not even survive the pregnancy. I had a caesarean and delivered a baby boy. Yet, the abuse continues. I have no voice. I have no freedom.

…My sister is in the 7th class at KGBV and I will protect her with all my might so she can complete her education and not be forced to get married”

We may be living in the 21st century, but the barbaric practice of child marriage continues in India, with the 2011 Census recording 33.8 million child marriages. From among these marriages, 19.5 million children were below 14 years of age and 14.3 million children were in the 15-19 age group.

In an obvious but profound statement, the Supreme Court’s landmark judgement criminalising sex with a minor wife states that any child who have 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.”

It is for such girls that the Supreme Court judgement is most gratifying.

Supreme Court’s ruling

The Indian Penal Code envisioned an exception to rape, wherein married girls above the age of 15 could not allege the specific charge of rape against their husbands. The recent verdict reads down this exception. It must be noted, however, that the court bypassed the question of the legality of marital rape by resorting to clarifying the meaning of ‘consent’ in the law in the context of minor girls. The context of marriage, in their reading, had no effect on whether a man can have sexual intercourse with a child.

Also read: Marital Rape and Child Marriage: Two Sides Of The Same Coin

The Supreme Court, while reading down Exception 2 to IPC Section 375, reasoned that the section was in violation of Articles 15(3), 21 and 14 of the constitution. Specifically, the court held that the exception was in violation of the principle that the best interest of the girl child is situated in the ‘philosophy and ethos’ of Article 15(3) and also in violation of the right of the girl child to live with dignity and with bodily integrity under Article 21. The court has also stated, in no uncertain terms, that the special laws that are in the best interests of children and women will take precedence over the IPC.

The verdict makes three important propositions that will have a lasting impact on the jurisprudence regarding children and childcare in India.

Brides sit and wait for their turn during a Muslim mass wedding in Ahmedabad, India. Credit: Reuters

Brides sit and wait for their turn during a Muslim mass wedding in Ahmedabad. Credit: Reuters

The first proposition suggests that a child cannot be treated as a major or as a person who has fully realised her capabilities and faculties.

The second proposition is that “under no circumstance can a child below 18 years of age give consent, express or implied, for sexual intercourse.” By implication, there is no question of consensual sex by law as far as children below 18 years are concerned.

Lastly, the court finds no rationale in creating an artificial distinction between a married girl child and an unmarried girl child to the extent that it is alright for the husband to have non-consensual sexual intercourse with his wife who is a girl child between 15 and 18 years of age but it is a criminal offence to have a sexual intercourse with unmarried girls. Such a distinction, the court holds, is opposed to the best interests of the child, which is enshrined in Article 15(3) of the constitution.

In emphasising the spirit of Article 15(3) of the constitution, the court reiterates a forgotten constitutional value by laying down that ‘affirmative action in respect of a girl child must not only be liberally construed and interpreted but must override any other legislation that seeks to restrict the benefit made available to a girl child’. Thus it gives centrality to girl children and their constitutional rights. It recognises that “it is a heinous crime” and that “every girl has a bodily integrity that cannot be destroyed by a traditional practice sanctified by the IPC.”

The judgement gives hope to all girls to assert their rights, “The human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance.” Clearly, the judgement, in accordance with Article 14 and 15 of the constitution, sees that there is a violation of right to equality and discrimination of the married girl between 15-18 years of age.

Also read: The Centre Has Solemnised the Invasion of a Girl’s Bodily Integrity, Sexuality and Mind

In accordance with the judgment, Exception 2 to Section 375 of the IPC is to now be read as:

“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape.”

There is also a need to harmonise the IPC, the Protection of Children From Sexual Offences Act, the Juvenile Justice Act and the Prevention of Child Marriage Act and all other relevant statutes in the best interest of the girl child.

A new path

The Supreme Court’s judgement coincided with the International Girl Child Day, paving a new and historic path towards freedom and dignity for millions of married girls in our country. It is better late than ever. I cannot but conclude that if it only came earlier, justice could have been done to millions of children in our country.

It also makes an explicit acceptance that the normative stance towards child marriages should be that the state must declare them void ab initio. The court finds that this is the prevailing position of law in Karnataka and all states should move towards such a position. It has consistently been my position that the voidness of child marriages is a non-negotiable. The acceptance of such an articulation by the court is an important step towards securing justice for children in our country.

Even so, such an unproblematic interpretation of ‘consent’ takes away the agency from adolescent girls to explore and express their bodies and sexuality. The court has rightly separated the question of sexual intercourse and consent from marriage, but a more critical examination of adolescent sexuality is still due. For millions of girls like Roja and Nagamma, this judgment now holds a promise of justice. But these girls also deserve the right to take happiness and pleasure in their bodies, a right that continues to be denied to them by law.

Shantha Sinha is a former head of the National Commission for the Protection of Child Rights.