New Delhi (CNN)India’s Supreme Court has struck down a legal clause that allowed men to take part in non-consensual marital sex with girls as young as 15.
Wednesday’s landmark decision, which coincided with International Day of the Girl Child, also increased the age of consent for all women to 18.
“In our opinion sexual intercourse with a girl below 18 decades of age is rape no matter whether she’s married or not,” read the ruling.
“The exception carved out in the Indian Penal Code (IPC) creates an unnecessary and artificial distinction between a married woman child and an unmarried woman child and doesn’t have any logical nexus with any unclear objective sought to be attained.”
Jayna Kothari, who argued for Child Rights Group, an NGO that works to prevent child marriage, told CNN the ruling will produce a “uniformity of laws”.
“If you don’t criminalize sexual intercourse within marriage with a woman that is under 18, you’re implying that the Prohibition of Child Marriage Act (PCMA) is not worth enforcing. You’re allowing marriages with girls who are minors but you’re not doing anything about it.”
Child marriage is illegal in India, but remains widespread throughout the nation, particularly in rural locations. According to some 2016 report by UNICEF, around 3 million girls under the age of 18 are married in India every year.
Doing away with exceptions
Previously, there were disagreements when it came to the ages specified in India’s rape and child marriage laws.
Under section 375 of the IPC, intercourse with a girl below the age of 18 is considered rape, but a provision, known as Exception 2, did not punish a man for having sex his spouse, even if he did not have her consent, given she was above the age of 15.
Though marital rape is not a crime in India, the provision contradicted the age of consent in both the PCMA and the Protection of Children from Sexual Offences Act (POCSO).
The PCMA lists 18 as the age of marriage for girls and 21 for men. The age of consent is 18 beneath POCSO.
India’s underage brides
The Indian authorities had defended the controversial exception clause, saying that although the practice of child marriage is illegal, “the brutal reality is that 20 to 30 percent of female children below the age of 18 years got married in total breach of PCMA,” according to the ruling.
The country’s top court quashed that stance, describing sex with an underage wife as a “heinous crime which also violates the bodily integrity of a woman child, causes injury and sometimes destroys her freedom of reproductive option.”
Based on UNICEF, around one in four married Indian girls and women between the ages of 15-19 have endured physical abuse at the hands of their husband.
As underage brides, many also become young mothers and suffer complications during pregnancy and childbirth.
“They’re so young and because of that, they don’t have the power or the authority to do anything. They cannot speak out against violence, so they don’t have the capacity to protect their own rights. This is part of their right to freedom and dignity,” said Kothari.
An extremely toothless law
The motives behind child marriage differ from region, caste and religion. Moreover, the understanding of girls as a burden for poorer, lesser educated households often leads to marriages.
However there are fewer occurring today. The proportion of women aged dropped in 2015/2016 from 47 percent in 2005/2006 to 27 per cent, according to UNICEF.
The Supreme Court’s reading down of Exception 2 and bringing it in accordance with the Constitution and other laws will force people to “wake up,” according to Kothari, who’s also the Executive Director of the Center for Law and Policy Research.
“Although the PCMA prohibits marriages under 18, it does not make those marriages invalid. You have to go to a court to invalidate them. The sanctions are powerful although it’s a law that is very toothless. If you’re currently charged with rape, then you can go to prison. The numbers (of child marriages) will return. It’s not going to be overnight but it will seriously help the cause.”
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