Child marriages result in loss of opportunity for education, early pregnancy, child health problems, exposure to violence and domestic abuse. They are also a cover for trafficking the girl child in the garb of marriage
Does sexual intercourse or sexual acts by a man with his wife aged between 15 to 18 years amounts to rapeIJ The Supreme Court has finally resolved the issue while deciding the Writ Petition "Independent Thought Vs Union of India".
The petitioner prayed to the Court to clarify if there was any inconsistency between IPC's legal age of wife for sexual intercourse and Protection of Children from Sexual Offences Act's (POCSO Act) penetrative sexual assault with child by relative through marriage. If so, which provision would override the otherIJ
For resolving the issue, apart from other materials, the Court also relied upon Section 42-A of the POCSO Act which states that in case of inconsistency, the provisions of POCSO Act shall have overriding effect on the provisions of any such law.
The Supreme Court clarified the inconsistency by holding that sexual intercourse or sexual acts with one's own wife shall be rape if the age of wife is aged between 15 to 18 years.
The Union of India did not approve the criminalisation of sex with one's own wife on the ground that more than 46 per cent of the women in India, now between the age of 18 and 29 years, were married before the age of 18 years. Since the Parliament has fixed this age for child wife, the Judiciary should not interfere in it, the Centre argued as the same would destroy the institution of marriage. By quoting different legal provisions, Union in a way 'legitimised' the child marriage and left the burden on the child bride or groom to repudiate the same.
If the logic of saving the institution of marriage was to prevail then why the age of marriage for girls was fixed at 18 years in almost all the concerned legislations by the ParliamentIJ Was the fixation of 18 years as correct age of marriage for girls merely to have a status at the international forums that India has enacted the laws restraining Child MarriagesIJ Different laws define a child differently. Eleven years ago in WP(Crl.) no. 81 of 2006, the
Supreme Court requested the assistance of the law Commission on certain legal issues relating to child marriage and the dichotomy that exists on the age defining a child in different laws.
In response to this, in 2008, the law Commission of India in its 205th report addressed the lacunae in the Prevention of Child Marriage Act (PCMA). However, inconsistencies were not resolved as the petition was withdrawn on April 21, 2014.
In India, the Protection of Human Rights Act, 1993 has also been enacted to fulfil the international obligations. As per this Act, "Human Rights" include the rights relating to life, liberty, equality and dignity of the individual and the rights guaranteed by the Constitution or embodied in International Covenants and enforceable by courts in India. The International Covenants like Universal Declaration for Human Rights and Convention on the Elimination of All Forms of Discrimination Against Women states that child marriage shall have no legal effect. There is no doubt that if a child wife is forced by her husband into sexual intercourse, it would amount to a violation of her human rights.
Child marriages result in loss of opportunity of education, prospects of employment, early pregnancy, child health problems, exposure to violence and abuse. Child marriages are also a cover for trafficking of girl child in the garb of marriage. The child marriages, if not stopped, would bring enormous social cost to the State. This is in
addition to the economic cost to the country which would be obliged to take care of young mothers and infants who might be malnourished and sick.
The child marriage is a tradition which cannot be tackled only through legislation. All aspects of young people's lives — school, relationships, work, health and marriage — have to be addressed in order to bring about a lasting social change. Awareness programmes will have to be arranged not only for girls but for boys, parents, teachers, community members, leaders, schools and employers, too. It is for the Government of India and the State Governments to take proactive steps to prevent child marriages. I am further of the view that the age of marriage for males should also be reduced from 21 to 18 years. This by itself will help in bringing marriages within the fold of legal marriages.
The recent SC judgment would act as a deterrence. Girls would be sent to school instead of being married. They would study, acquire skills and ultimately it would open channels for their economic independence.
From liability, girls would become an asset for themselves and for their parents as well. Their marriages would become a secondary thing for the parents. If the issue of child marriages is not addressed seriously, it would affect the overall progress of the country and the development of the nation.
Up till now, the child marriage was a legal marriage. Till declared void as such, they were being frequently solemnised. The Supreme Court's verdict criminalising sexual intercourse or any sexual act with one's own wife between age of 15 and 18 years is undoubtedly a deterrence for those supporting the act.
With criminalisation of sex with child wife, the person entering into child marriage would be scared and hopefully child marriages would be prevented.
(The writer is Member, National Human Rights Commission. Views expressed here are personal)