India's highest court strikes blow against child marriage

India's highest court strikes blow against child marriage

India's highest court strikes blow against child marriage

India's Supreme Court ruled Wednesday that all instances of sex with underage girls, even those in a child marriage, is rape.

Concurring with Justice Lokur's view, Justice Gupta, who wrote a separate concurring judgement, said the figures were "startling". The court said that immunity couldn't be granted to a husband having sexual intercourse with his wife between the ages of 15 and 18.

"A perusal of the various reports and data placed before us clearly shows that marriage of the child not only violates the human rights of a child but also affects the health of the child", the bench said. "It violates bodily integrity of the girl child", said the court.

Referring to the same, the Apex court said that, "exceptions in rape law is discriminatory, capricious and arbitrary".

According to The Guardian, it now qualifies as rape if men have sex with their wife if she's under the age of 18, therefore making it a criminal act.

Justice Lokur said the exception has no rational nexus with the objective sought to be achieved by the different statutes.

When children, especially girls, get married young, it hinders their overall growth and development.

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The bench noted that the artificial distinction was contrary to the philosophy and ethos of Article 15 (3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in worldwide conventions.

Though the SC refused to say anything on the marital rape of adult women, this verdict is expected to have a prospective effect on it. But one big vulnerability remained for child brides.

"Civil society can do so much for preventing such child marriages but eventually it is for the government of India and the state governments to take proactive steps to prevent child marriages", the bench said. Treating all below 18 as children may be good for their care and protection, but whether 18 is the right age for consent in this day and age remains a moot question. However, it was clarified by the apex court that it did not want to go into the aspect of marital rape, but asked why such an exception was created when the age of consent was 18 years for "all purposes".

Successive Indian governments have defended the exception, arguing that social and economic conditions in many parts of the country make child marriage an unfortunate reality, one that needed to be addressed by development programmes rather than the law.

"If all sexual acts by a man with his own wife qualify to be marital rape, then the judgment as to whether it is a marital rape or not will singularly rest with the wife", the court had observed.

Holding this distinction was also "contrary to the philosophy behind some statutes, the bodily integrity of the girl child and her reproductive choice", he said it also "turns a blind eye to trafficking of the girl child and surely each one of us must discourage trafficking which is such a disgusting social evil".

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