SC Verdict on Criminalising Married Minor Intercourse

Experts termed the Supreme Court's judgment that criminalises sex with a minor wife as landmark, but said it has left a few questions unanswered.

For instance, while it is now illegal for a man to have sex with his wife if she's in the age group of 15 to 18, the marriage itself can continue. Child marriage is illegal but widely prevalent in India because of poverty, weak law enforcement and patriarchal norms.

"How will one ensure that the man is not having intercourse with his wife? And if he continues to do so and impregnates her, how does that play out? Will the medical officer send her back, or will they terminate the pregnancy? All these questions remain unanswered," says Enakshi Ganguly of Haq.

Haq along with other NGOs working for child rights has held a consultation with the National Commission for Protection of Child Rights (NCPCR) on child marriage in April. The inconsistency among laws framed against rape, child abuse and underage marriage was one of the contentions of NGOs.

Section 375 of the Indian Penal Code (IPC) says sex with a girl who is below 18 is rape, but Exception 2 allowed a man to have sex with his wife aged between 15 and 18 even without her consent. The court struck down this exception on Wednesday. The Protection of Children from Sexual Offences Act (POCSO), 2012, also considers sex with children — defined as below 18 — as rape. Exception 2 was also contrary to the Prohibition of Child Marriage Act, 2006, that puts 18 as the age of marriage for girls and 21 for boys.

Prabhat Kumar of the Save The Children, also part of the consultation, said that the judgement is welcome. However, it has not clearly stated whether the child bride needs to complain on her own or a relative can do so, too. "There are some complexities in the judgement regarding mandatory reporting of these cases," said Kumar.

An official from the NCPCR, who did not wish to be named, said that it is unlikely that parents will come forward to lodge complaints under these cases, because in most cases, they themselves marry off children.

And in cases where children marry on their own, the judgement will prove to be a huge detriment. Ganguly says that a sizeable chunk of child marriages cases arises out of parents lodging complaints against runaway teenagers. And the judgment makes it easy for runaway children to be put behind bars, for up to seven years.

Yet, as the order has recognised marital rape in the instance of married women in the age group of 15 to 18, it led to speculation that this could be the precursor to the recognition of marital rape. SC counsel Indira Jaising, however, felt that it was not so.

"The court has dealt only with the cases of marital rape in child marriages. The matter of marital rape in the cases of adult women, however, will have to be separately argued," said Jaising, adding that the age of consent is a larger issue at hand.

Adrian Phillips of anti-human trafficking organisation Justice and Care, part of the drafting committee of the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2016, said that the judgement will deter traffickers who lure young girls with the promise of marriage. "For the longest time human traffickers have been using marriage with minors as an alibi to rape young girls in the first instance before selling them to pimps and brothel owners. This judgement will be a huge deterrent for traffickers," said Phillips.