To end child marriage, SC must act decisively – Asian Age

Author - Baijayant "Jay" Panda

Posted on - 27 September 2017

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As per the latest census, 30 per cent of married women in India wed before they turn 18.

India has the highest number of child brides in the world, according to a Unicef study conducted in 2016. As per the latest census, 30 per cent of married women in India wed before they turn 18. This is despite the fact that the Prohibition of Child Marriage Act 2006 (PCMA) set the legal age of marriage for women at 18 years. The practice of underage marriage is also in direct violation of UN Convention on Elimination of All Forms of Discrimination against Women, which India ratified back in 1993. In addition to deterring socio-economic empowerment of women by perpetuating the cycle of illiteracy and exploitation, child marriage is a severe impediment to maternal and child health. It is associated with a 50 per cent higher chance of stillbirth and death within first few weeks among infants born to underage mothers.

While the number of child brides under 15 has seen a decline, rates of marriage have increased for girls between 15 and 18, according to Unicef. For the law against child marriage to be truly effective, therefore, we must ensure that there are no other legal provisions that contravene it.

The Supreme Court as well as the Delhi high court are hearing separate cases with regard to the same provision — Exception 2 to Section 375 of the Indian Penal Code (IPC) on rape. Exception 2 states that “sexual intercourse by a man with his wife, the wife not being under 15 years of age, is not rape”. The existence of this section provides tacit approval to illegal marriages between the ages of 15 and 18. Further, since the legal age of sexual consent under the IPC is 18 years, child marriage would amount to statutory rape if was not for the exception mentioned above.

The petition in the Delhi high court calls for the criminalisation of marital rape. This is a larger issue that extends beyond underage brides. The Supreme Court, on the other hand, is looking into a narrower aspect of whether the law allows for sexual intercourse with minors in the case of married girls between the ages of 15 and 18. While the Delhi high court hears different arguments, the Supreme Court has the opportunity to lay the groundwork for in-principle recognition of marital rape as well as harmonise the legal provisions around age of sexual consent under several existing laws that can fortify the law against child marriage.

First, the Supreme Court must determine if married women between 15 and 18 form a separate class from unmarried minors. The Protection of Children from Sexual Offences (Posco) Act 2012, as well as the section on  the age of consent as per IPC, when read together, imply that sexual offences have been divided into two classes — sexual offences against minors and sexual offences against women who have attained majority. In the first class, since it pertains to a minor, whether or not consent is given is deemed irrelevant as the minor is treated as incapable of giving any form of consent. In the second class, after a woman has attained the age of 18, she is deemed capable of giving consent, and thereafter, it must be considered in cases of sexual violence. If viewed from this restricted lens coupled with the fact that PCMA sets 18 years as the legal age of marriage, the provision to treat married women between 15 and 18 would appear invalid.

Unfortunately, this is not a one-dimensional issue, and the existence of personal laws has to be accommodated while looking at the larger picture. Muslim law, Christian law as well as the Hindu Marriage Act allow for minors to be married, with varying provisions for revocation of marriage. Various high courts have taken competing and contradictory views when it comes to whether the PCMA will prevail over personal laws. The Gujarat high court in 2014 held that a Muslim woman can get married by choice after reaching the age of 15 and attaining puberty. On the other hand, several other jurisdictions — including the Delhi, Karnataka and Madras high courts — have taken the view that PCMA must prevail over personal laws, including the Muslim personal law. But despite various high courts ruling in favour of the PCMA overriding personal laws, Karnataka is the only state to amend the PCMA and declare any marriage between minors as invalid in law. Clearly, there is a disparity and incoherence in terms of jurisprudence on this front. The current proceedings are an opportunity for the Supreme Court to minimise discretionary pronouncements with regard to the prevalence of personal laws when it comes to child marriage.

With a view to making the provisions on underage marriage consistent with these laws, I have filed a private member’s bill in Parliament — Criminal Law (Amendment) Bill 2017 — that seeks to replace the word “15” mentioned in Exception 2 to “18”. A uniform age of consent and marriage will help solve several discrepancies between the legal age of marriage, the age of consent of an unmarried woman and Exception 2. It will provide protection for the physical and mental well-being of minor women who are already victims of the societal evil of child marriage.

If anyone below 18 is assumed to not have the capacity to form an informed decision when it comes to voting for a leader, I doubt they will have that faculty when it comes to marriage. Informed consent and the ability to form it is the differentiating factor between the ages of 15 and 18. The verdict of the Supreme Court is expected soon and one hopes the judiciary will take cognisance of this basic principle. The amendment to Section 375 will serve as a benchmark in creating more homogenous laws and will be a step forward to the abrogation of child marriage in India.