Supreme Court and Reforms

Context

• The Apex court held that sexual intercourse by a man with his wife below 18 years of age is rape.
• The court further insisted the government to takepreventive steps against child marriages

What is the verdict?

• Sexual Intercourse with a girl below 18 years of age is rape, regardless of whether she is married or not.
• The exception carved out in section 375 of the Indian Penal Code creates an artificial distinction between a married girl child and an unmarried girl child.
• The exception clause took away the right of a girl child to bodily integrity and reproductive choice.
• Exception 2 to Section 375 of the IPC now states that sexual intercourse or acts with a man with his own wife, not being under eighteen years of age, is not rape.

What is marital rape? Why has it still not been criminalized?

• http://blog.forumias.com/criminalizing-marital-rape-may-become-a-tool-to-harass-husbands/

How profound is the issue of Child marriage in India?

• The study based on 2011 Census, stated that 2.5% of marriages of minor girls were reported in Rajasthan.
• The other states with a high incidence of marriages of girls below the legal age are Meghalaya, Arunachal Pradesh, Bihar, Uttar Pradesh, Gujarat, Sikkim, Madhya Pradesh and West Bengal.
• Rajasthan also topped in the percentage of boys marrying below the legal age of 21 (4.69%).
• No marriage below 10 years of age was reported across the country.
• According to the Census study, 12.9% of girls got married at the age of 10-17 years and 43.6% between 18-20 years.
• However, only 4.9% of boys got married in the 10-17 years age group and 11.2 % in the 18-below 21 age group.
• The study shows a minor decline of 0.1% in the marriage of minor girls.
• The decline in rural India, between 2001 and 2011 Census was marginally higher than in the whole of the country.
• However, the incidence of child marriage among girls increased substantially in urban India from 1.78% in 2001 to 2.45% in 2011.

What are the major reasons for prevalence of Child Marriage in India?

Economies of marriage

• Poverty and marriage expenses such as dowry may lead a family to marry off their daughter at a young age to reduce these costs.
• Patriarchal Indian society considers a girl as an economic burden. Marrying her off at an early age is away to transfer this burden to the marital family.
• It is believed that the marriage of the boy brings home an additional hand to assist the unpaid household and economic activities.

Lack of education:

• Poor educational opportunities for girls, especially in rural areas increase the vulnerability of a girl child to be married off early.
• In the current patriarchal setup a girl’s right to education is regarded as a secondary priority to her labor in the household
• This aggravates the situation as the girls’ power to resist marriage and opt for alternative aspirations is decreased.
• Patriarchy and gender inequalities prevailing in the Indian society is one of the major reasons for persisting high incidence of child marriages.
• Prevailing cultural perspectives too encourage the child marriage to thrive in.
• Inadequate implementation of laws is a major reason for persisting menace of child marriage in the country.

Section 375 v the Constitution

• Exception 2 to Section 375 (which defines rape) of the IPC (as amended by the Criminal Law (Amendment) Act, 2013), as violative of Articles 14, 15 and 21 of the Constitution

Article 14 in the Constitution of India

Equality before law

• The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

Article 15 in the Constitution of India

• Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

1. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them
2. No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition

Article 21 15 in the Constitution of India

• “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”
• Article 21 can only be claimed when a person is deprived of his “life” or “personal liberty” by the “State” as defined in Article 12.
• Article 21 secures two rights:
  • Right to life
  • Right to personal liberty
• The Article prohibits the deprivation of the above rights except according to a procedure established by law

What are the various implications of child marriage?

On women health:

• Issues related to early pregnancy. Mental health is also a major concern. Violence and abuse at marital home can lead to post-traumatic stress and depression.

On Education:

• Girls are forced to drop out schools. There lies a cause and effect relationship between lack of education and child marriage.

On fertility: 

• Lower age at marriage directly affects fertility rates. Lower the rate of age at marriage higher is the fertility rate.

Maternal mortality: 

• Maternal mortality is high among women who have conceived at an early age. Risks associated with pregnancy are higher.

Infant Mortality: 

• Mortality rates of children born to very young mothers are high. The children that survive are likely to develop health problems and are more at risk of transmitting HIV/AIDS.

Violation of Rights of Children: 

• The Rights of Children are denied by early marriage.
• The Convention on the Rights of the Child is designed to guarantee certain individual rights.
• Child marriage denies the following rights:
• The right to education
• The right to be protected from physical and mental violence, injury or abuse, including sexual abuse, rape and sexual exploitation,
• The right to the enjoyment of the highest attainable standard of health,
• The right to rest and leisure, and to participate freely in cultural life,
• The right to not be separated from parents against the child’s will,
• The right to protection against all forms of exploitation affecting any aspect of the child’s welfare and
• The right to eventual employment

What is the conflict between IPC 375 and POCSO Act?

• The verdict concluded the disparity between these exceptions to Section 375, which allows a husband to have sexual relationship with his 15-year-old wife
• The definition of ‘child’ in recent laws such as the Protection of Children from Sexual Offences Act, 2012, which includes any person below the age of 18.

What are the other important laws against child marriage and marital rape in the constitution of India?

Child Marriage Restrain Act or Sarda Act of 1929

• The Act was published in the Gazette of India Part-IV.
• The main aim of the Act was to restrain solemnization of child marriages in India.
• The Act prohibited marriage of boys below 18years and of girls below 12 years of age.

Child Marriage Restrain (Amendment) Act of 1978

• The Act rose the minimum age at marriage for girls to 18years and that of boys to 21 years.

The Prohibition of Child Marriage Act, 2006

• The Act came into effect on 1st November 2007
• Under this Act, “child” means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age.
• The Act defined “child marriage” as a marriage where either of the contracting parties is a child

What are the possible implications of the verdict? What is the suggested way ahead?

• The exception clause took away the right of a girl child to bodily integrity as sexual Intercourse with a girl below 18 years of age is rape, regardless of whether she is married or not.
• With this judgment, the court ended the decades-old disparity between Exception 2 to Section 375 IPC and other child protection laws.
• The issue of Child marriage by large still remains open as the court refrained from dealing with the issue of marital rape of a woman aged above 18.
• The SC verdict on marital rape focused solitarily on married women below the age of 18.Thus a large part of marital rape law is still open.
• The government authorities need to ensure that child marriage is abolished at all cost