Millennium Post

No minor sex under nuptial cover

By striking down a part of the country's legal code that had permitted men to have sex with their underage wives, the Supreme Court of India has not only closed the gates for child marriage, but also opened the gates for the rights of girls. Though, after alarming incidents in the recent years, India's laws on sexual assault were overhauled, one area remained untapped: Marital rape. Section 375 of the Indian Penal Code (IPC), which defines the offence of rape, had an exception clause: "Intercourse or sexual act by a man with his wife, not below 15 years, is not rape." On Wednesday, a two-judge bench of the Supreme Court ruled out this legal discrepancy and said that sexual intercourse with a minor wife is rape and a case can be registered against the husband on her complaint. "Sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not," the Court said. It was that the exception that a man could have sex with a girl as young as 15, as long as she was his wife, virtually encouraged child marriage, which is prevalent throughout rural India and has imperilled many development goals, like improving education, ending poverty and reducing family size. It also puts millions of Indian girls in dangerous situations where they are repeatedly abused. Not only that, it would also cut down on the number of young girls who are essentially being trafficked. It is a well-known fact that in rural India, poor families often marry off their daughters while they are still in their early teens. Many fathers are eager for the dowry payments they can accrue from men who want young wives. They also feel that getting women married as soon as possible can help keep them safe in a country where there are more men than women. With the verdict, the Apex Court has propelled the protection of children and young women from sexual assault in India, lifting of taboos about casual sex and the country's longstanding patriarchal marriage traditions. In India, nearly one in every five women between the ages of 20 and 24 are married before the age of 15 and one in every two are married before the age of 18. There has been a sharp decline in marriages below the age of 15, but India still accounts for 40 per cent of the world's child marriages. Even beyond the nuptial ties, there is plenty of sketchy evidence that views on casual or recreational sex are changing, as the interaction between young men and women increase and more Indians move away from family for work. The Criminal Law Amendment Act, in 2013, increased the age of consent for girls, from 16 to 18 years, but it had an exception clause that reserved the age of consent for married girls at 15 years. Surprisingly, the clause was not in proper accordance with the Protection of Children from Sexual Offences Act – for which sex with girls below 18 years is rape. Even a government survey found that over 53 per cent of children in India had experienced some form of sexual abuse. Taking serious note of the loopholes and rejecting the claim of the government that the exception was essential to protect the institution of marriage; the Supreme Court had preferred to save rights and dignity – instead of patriarchal conventions. However, it may be noted, with the age of consent at 18, India became one of the most conservative countries in the world. While the age of sexual consent in Britain is 16; 15 in France, and 13 in Spain, in the United States, the age ranges from 16 to 18 years, depending on the state. Though the court has used the language of rights and dignity of under-18 girls, there seems to be something amiss about the adolescents' evolving capacity and maturity to make decisions about sex. Can the legal framework of India really help adolescents deal with their sexuality in an informed and responsible way? The verdict would no doubt put a body-blow to normal and natural sexual relations between two people who are in the same age group and have consented to sex. It may also be noted here that most of the remand homes in India are full of boys, who have eloped or had consensual sex with young girls and the girls' disapproving parents had filed cases of kidnapping and rape against the boys. The Supreme Court's verdict does not appear to be pertaining to many other litigious facets of the exception clause. As the debate is still on, the government must pull up its socks to redraft the notion – taking cognizance of both customary social conventions and women's rights as well. Remember, good virtues cannot be inculcated and good conscience cannot be imbibed in a child by legal provisions!

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