Complete the justice: 

Complete the justice: 

Context:

The recent Supreme Court verdict making sex with a girl between 15 and 18 years even within marriage a criminal offence may have set in motion a series of positive effects for the girl child.

Introduction:

• The apex court criminalized sexual intercourse by a husband with his wife who is under 18 years of age.
• The apex court said that it is removing the distinction between an unmarried and married child because “it is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Article 14, 15 and 21 of the Constitution of India.

Rationale behind decision:

• The judgment removes the distinction between an unmarried and married child.
• Upholds right of equality, right to make choice and right of life of a married girl child.
• Will be a big deterrent for child marriage-Sexual and domestic servitude of child girl will be stopped.
• It will reduce burden on maternal and infant mortality a Early marriage generally leads early pregnancy.

Consequences of judgment:

• A major consequence of this judgment is also its potential towards reducing India’s burden of maternal and infant mortality.
• There is a close causative link between child marriage and maternal, neo-natal and infant mortality along with stunting and malnutrition.
• Early marriage leads to early pregnancy. Twelve per cent of girls aged 11-19 are already mothers.
• Risk to both mother and infant survival are much higher.
• Underweight mothers tend to give birth to underweight babies.
• Nearly 50 per cent of new-born deaths are caused due to complications arising out of low birth weight and premature delivery.
• According to the National Family and Health Survey-4 (NFHS-4) nearly 50 per cent pregnant women in the age group 14 to 59 are anaemic. More than half of these women in the age group 20-24 years were married before they attained the age of 18 years, and nearly 27 per cent were anaemic.
• States and regions with high incidence of child marriage also show greater prevalence of maternal and infant mortality and morbidity.
• Madhya Pradesh, for instance, has the worst infant mortality of 47 deaths per 1,000 live births and also tops the list of states for the number of child marriages.
• Other states that display a similar pattern are Odisha, Assam , Uttar Pradesh, Jharkhand and Rajasthan.
• The Supreme Court says , “ the National Plan of Action for Children recognizes that the early marriage of girls is one of the factors for neo-natal deaths, early marriage poses various risks for the survival, health and development of young girls and to children born to them and most unfortunately it is also used as a means of trafficking.”

Criticisms of judgment:

• Judgment points to severe anomalies within the law which does not, in fact, ban child marriage outright but says that it voidable at the option of the contracting party who is a child at the time of marriage and void only in certain circumstances.
• Despite laws against child marriage, there are around 23 million child brides in the country.
• Child marriage continues to be valid under the Hindu Marriage Act, 1955 and Muslim Personal Law.  This is a violation of human rights of children –both boys and girls with particularly negative consequences for the health, welfare and dignity of the girl child.

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%).
• 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.

Reasons of child marriage and its impact:

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.
• There is another dimension to the economies of marriage. 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.
• 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 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 to encourage the child marriage to thrive in.
• Inadequate implementation of laws is a major reason for persisting menace of child marriage in the country.

Impacts 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

Laws related to child marriage:

The Prohibition of Child Marriage Act, 2006

• The Act came into effect on 1st 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.
• Every child marriage, whether solemnized before or after the Act came into effect, can be made void by either the man or the woman within two years of attaining majority.
• Karnataka has passed a law making all child marriages void.
• Children born of child marriages are considered to be legitimate.
• Responsibility laid on the District Courts to decide upon the parental custody of the child, keeping in mind children’s best interests.
• Punishment of male adult marrying a child: A male adult above eighteen years of age, if contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both.
• Punishment for solemnizing a child marriage: 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 one lakh rupees unless he proves that he had reasons to believe that the marriage was not a child marriage.

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.

Incentives and Schemes provided by the Government of India to end child marriage

• Dhan Laxmi scheme
• Apni Beti Apna Dhan Programme- conditional cash transfer program which aims at delaying early marriages of girls
• Kishori Shakti Yojna
• India as a member of the South Asian Initiative to End Violence against Children (SAIEVAC) adopted a regional plan to end child marriage.
• India is a part of UNFPA and UNICEF’s Global Programme to Accelerate Action to End Child Marriage.

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.