Her right to choice

Her right to choice

Context

• SC needs to classify child marriage as forced marriage
  

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 in the constitution of India?

Child Marriage Restraint 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 Restraint (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 defines “child marriage” as a marriage where either of the contracting parties is a child

Section 375 vs 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 15 in the Constitution of India

• Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
• The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them
  

Article 21 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.
  

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%).

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 a way 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 set up, a girl’s right to education is regarded as a secondary priority to her labor 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.
• 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.
  

What is the suggested way ahead?

• 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.
• 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.