Between void and voidable, scope for greater protection for girl child: (Indian Express, Editorial)

Between void and voidable, scope for greater protection for girl child: (Indian Express, Editorial)

Context:

• The recent Supreme Court verdict provides short term relief to the female victims of early marriage.

What is the verdict?

• The verdict says that a man who has sex with a wife less than 18 years can be charged of rape.
• The judgment made rape laws consistent with The Protection of Children from Sexual Offences (POCSO) Act, The Juvenile Justice Act, and The Prohibition of Child Marriage Act (PCMA), all of which recognize 18 years as the age of consent for a girl.

What is 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.

What is the Juvenile Justice Act, 2015?

• Juvenile Justice (Care and Protection of Children) Act has been passed by Parliament of India in 2015.

Objective:

• The Juvenile Justice (Care and Protection of Children) Act, 2015 applies whenever the person accused of committing a crime is a child.
• It is also applied to vulnerable children who need the government to take care of them.
• And also for such children who need help with getting a better and fulfilling life, the law provides for a number of mechanisms (including adoption, sponsorship and foster care).

What is the Prohibition of Child Marriage Act 2006?

• The Prohibition of Child Marriage Act 2006 came into force on 1st November, 2007.

Objectives:

• The objective of the Act is to prohibit solemnization of child marriage and connected and incidental matters.
• To ensure that child marriage is eradicated from within the society, the Government of India enacted Prevention of Child marriage Act 2006 by replacing the earlier legislation of Child Marriage Restraint Act 1929.
• This new Act is armed with enabling provisions to prohibit for child marriage, protect and provide relief to victim and enhance punishment for those who abet, promote or solemnize such marriage.

Marriage for girls: in the Indian context:

• Today, the decline in child marriage is hardly impressive.
• For, census data shows the continued prevalence of child marriage.
• For example, in states as different as Bengal and Rajasthan, marriage of girls as young as 14 is far from rare.

Reason for child marriage in India:

• Poverty and marriage expenses such as dowry may lead a family to marry off their daughter at a young age to reduce these costs.
• Poor educational opportunities for girls, especially in rural areas increase the vulnerability of a girl child to be married off early.
• One of the leading causes of early marriage is the over-emphasized fertility rate.
• Societies such as India’s, specific roles are assigned to women traditionally and such societies tend to facilitate these through practices like early marriage which reinforce prescribed gender roles.

What is marital rape?

• Marital rape or spousal rape is the act of sexual intercourse with one’s spouse without the consent of the other spouse.
• It is a form of domestic violence and sexual abuse.

Is marital rape as a law being misused?

• Marital rape is difficult, practically impossible to prove or disprove.
• There are several questions that remain unanswered by those demanding a new law to deal specifically with marital rape.
• As to what constitutes marital rape and what would constitute marital non-rape needs to be defined precisely before a view on its criminalization is taken.
• If all sexual acts by a man with his wife will qualify to be marital rape, then the judgment as to whether it is a marital rape or not will singularly rest with the wife.

What is the way ahead?

• The Indian society needs to upgrade itself with some concrete educational schemes for women in particular.
• The society also needs to change its patriarchal outlook for women and their marriage parameters.
• 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.