There are more than 23 million child brides in the country as per reports presented to the Supreme Court. Expressing dismay over this alarming figure, the court has observed that one out of every five marriages in India has violated the Prohibition of Child Marriage Act (PCMA) 2006.
In a landmark Judgment, the Supreme Court of India, has recently held that sexual intercourse by a man with his wife, who is below 18 years of age, is rape.
“A girl child below the age of 18 cannot be treated as a commodity having no say over her body or someone who has no right to deny sexual intercourse to her husband,” the Supreme Court held. The bench of Justices Madan B lokur and Deepak Gupta further held, “Human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance.”
This historic judgment shall work as a deterrent to the practice of child marriage in India and give ammunition to the prosecution to prosecute the girl child traffickers who trade girl children under the disguise of marriage. It is not that Indian law has no protection against rape of girl children.
The Protection of Children from Sexual Offences Act (POCSO Act) 2012 has been formulated in order to effectively address sexual abuse and sexual exploitation of children under 18 years of age. But this excluded married girls.
On the other hand, there is penal provision of section-375 against rape in the Indian Penal Code. But here is an exception clause, which allowed the husband of a girl child between 15 and 18 years of age, the blanket liberty and freedom to have non-consensual sexual intercourse with her. Her willingness or consent was of no concern. The husband in such cases was not punished for rape.
An unmarried girl child can prosecute her rapist, but a married girl child aged between 15 and 18 could not even do that, Justice lokur said, pointing out the injustice. Interestingly the law is silent on a child bride’s fate, who is below 15 years of age. The recent judgment of the SC has struck down this exceptional clause. It has held that consented or non-consented sex of a husband with his under-18 wife is rape.
Now there are practical challenges to the implementation of the judgment. As the follow up of the judgment, police can file a rape case against any husband who has married an under-18 girl. Police can take the girl for medical test and her husband can be arrested. Similarly, if an under-18 wife gets pregnant and the local Anganwadi worker or ASHA worker comes to know about it or a doctor during delivery comes to know about it, a police case can be filed and husband can be arrested. Such actions will check child marriage. But is it possible by police to take action in such mannerIJ There are minority, ST, SC and OBC communities where child marriage is practiced and police action shall disturb the vote bank of the political parties. Thus the police shall not act and the judgment shall be rarely enforced.
This is the re son why the Government was not willing to protest in the court. But the judgment shall surely help police and prosecution lawyers while fighting girl child traffickers who traffic under the disguise of marriage.
The judgment thus calls for cent per cent elimination of child marriage system in India to nip the issue in bud, instead of allowing girl child marriage and then enforce the rape-judgment.
India has already a progressive child marriage prohibition law but that is not implemented properly. The PCMA-2006 bans marriage for boys and girls under 21 years and 18 years respectively, treating them as children. The PCMA says that whoever, being a male adult above eighteen years of age, contracts a child marriage, he shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to Rs 1 lakh or with both. It further says that whoever performs, conducts, directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which may extend to Rs 1lakh.
The act also says that where a child contracts a child marriage, any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful, including any member of an organisation or association of persons who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnized, including attending or participating in a child marriage, shall be punishable with rigorous imprisonment which may extend to two years and shall also be liable to fine. The Act calls for appointment of Child Marriage Prohibition Officers by the State Governments. For preventing solemnisation of mass child marriages on certain days such as Akshaya Tritiya, the Act empowers District Magistrate as Child Marriage Prohibition Officer with all powers to stop such marriages. But the Act does not declare invalidation of the child marriage unless a party goes to court. However, its implementation is too weak.
Now, there has to be greater responsibility on all stakeholders to ban child marriage culturally. There has to be combined work of political activists, social workers, cultural village heads, religious heads, village leaders, Panchayats, AWWs, ASHAs and women SHGs. The WCD department must take a lead role in combating child marriage. The mass child marriages have to be stopped wherever they exist. Individual marriages need home counseling by health and ICDS workers. The best intervention is the education of the girl children. Better to further the Beti Banchao-Beti Padhao abhijan of Prime Minister. The State Governments can lunch similar campaigns. The highly infested blocks and social groups have to be identified and targeted to check child marriage. Along with the marriage, the practice of pre marriage-engagement of girl child has to be stopped.
