Complicated terms of engagement: 

Complicated terms of engagement:

Context:

Recently, the Supreme Court declared  that a man who has sex with a wife less than 18 years can be charged of rape.

What is the Supreme Court verdict?

• The court held that since sexual assault in marriage is already a crime under the Protection of Children from Sexual Offences Act, 2012 (POSCO) , it is discriminatory and arbitrary to suspend the protection of the rape law for  these underage married girls.
• The apex court set aside the state’s argument that marriage presumes consent; that compulsory sex in child marriage is protected by customary or personal law; that husbands of child brides must have impunity from the rape law; or that poverty and lack of development means compulsory sex in child marriage must be de-criminalised.
• The Supreme Court decision makes it clear that sexual consent can only be given by an adult woman of 18 years.
•  The apex court holds that the “the girl child must not be deprived of her right to choice”. The right to choose includes freedom from parental pressure to marry early, freedom from forced marriages, freedom of  choice of sexual orientation, and freedom to find self-fulfillment through study, work, profession, vacation or talent.

Definition of Child:

•  POCSO defines a child, (irrespective of gender) as a person under the age of 18 years, which prevents the “inducement or coercion of a child to engage in any unlawful sexual activity”.
• It mandates the Central and State governments to take all measures to ensure publicity to the provisions of the Act and obliges government officials to be trained in how to implement the Act.
• The Indian state acceded in 1992 to the UN General Assembly’s Convention on the Rights of the Child.
•  The apex court Judgment ruled that the jurisdiction of sexual impunity     preventing husbands from being prosecuted for rape of child wives must lie     with customary or personal law through the marital rape law exception.

Individual choice

There are two broad responses to the age of consent.

•  The first perspective that evokes the political economy of custom and law argues for a lowering of age of consent to 16. This creates a conflict with the definition of the child under POCSO, unnecessarily putting women’s rights against child rights.
• The second stance recommends proximity in age clause in the age of consent provision to prevent the criminalisation of young people who are sexually active between 16 to 18 years.
• Both these perspectives are guided by recognition of the vulnerabilities of young adults to succumb t pressure at home to marry early and against their wishes.

Child marriage in India:

• Child marriage has historically cast a shadow over rape law reform in India. Child marriage is a specific form of customary practice arranged by parents or male community elders.
• These are  a distinct form of early marriages in which the consent of the patriarch of the family or elder determines the matrimonial fate of the child.
• Recently, research by Young Lives in coordination with National Commission for Protection of Child Rights (NCPCR) revealed that Rajasthan has reported the highest incidence of child marriages.

Highlights of the Report

• 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%).
• However, the incidence of child marriage among girls increased substantially in urban India from 1.78% in 2001 to 2.45% in 2011.

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 a way to transfer this burden to the marital family.

Lack of education:

• Poor educational opportunities for girls, especially in rural areas increase the vulnerability of a girl child to be married off early.
• Also, in the current patriarchal setup of the Indian society a girl’s right to education is regarded as a secondary priority to her labour in the household. This aggravates the situation as the girl’s’ 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.

Impacts of Child Marriage

• On women’s 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

The Prohibition of Child Marriage Act, 2006

• The Act came into effect on 1^st November 2007
• The Act extends to the whole of India except the State of Jammu and Kashmir; and it applies also to all citizens of India without and beyond India
• 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 defines “child marriage” as a marriage where either of the contracting parties is a child
• Boys and girls forced into child marriages as minors have the option of voiding their marriage up to two years after reaching adulthood, and in certain circumstances, marriages of minors can be null and void before they reach adulthood.
• It provides maintenance for the female contracting party.
•  The act prohibits the solemnization of child marriages wherein a child means a person who if male has not yet completed 21 years, and if female not yet 18 years.
•  The Protection of Children from Sexual Offences (POCSO) Act, 2012:
• The Protection of Children from Sexual Offences Act (POCSO Act) 2012 was formulated in order to effectively address sexual abuse and sexual exploitation of children.

Objectives:

• The Act defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography.
• The Act also casts the police in the role of child protectors during the investigative process
• The Act further makes provisions for avoiding the re-victimisation of the child at the hands of the judicial system.
• It provides for special courts that conduct the trial in-camera and without revealing the identity of the child, in a manner that is as child-friendly as possible.
• Above all, the Act stipulates that a case of child sexual abuse must be disposed of within one year from the date the offence is reported.

Suggestions to combat the menace:

• Extending educational infrastructure especially in rural areas. Education for girls at least up to secondary level should be provided
• Addressing the issue of gender biases
• Extensive awareness and gender sensitization programs.
• Empowering young people to criticize the existing social norms.
• Integration of existing child laws in India.
• Effective implementation of the Prohibition of Child Marriage Act (2006).
• Consistency between personal laws and The Prohibition of Child Marriage Act should be established.
• The question of sexual consent must lie with the individual woman.
• Parents, elders, political parties, priests or vigilante groups should not be permitted to force women, adult, or minor, into marriage or compulsory heterosexuality.
• Young adults should not be forced be forced into heterosexuality per se, if they are not sexually attracted to the opposite sex.