If a minor is incapable of grasping the meaning of consent, is she capable of grasping the meaning and implications of marriage?
The government has an inexplicable interest in safeguarding the institution of heterosexual marriage in India. It repeatedly articulates this interest through legal provisions which problematically tell women that their rights to equality and freedom are qualified depending on their marital status.
The Supreme Court, on Wednesday, made a small but significant, dent to this prevailing paradigm. In declaring that sexual intercourse with a minor wife will be deemed rape under the law, the court opened the hitherto sacrosanct institution of marriage to legal scrutiny.
But somewhere along the way, it fell short of asking an important question; should a minor girl be allowed to enter into the institution of marriage in the first place?
Married or not, sexual intercourse with a minor girl is rape, the apex court has ruled. With this ruling, the court has obliterated an inherently arbitrary legal provision. While the legal age of sexual consent is 18, the law had hitherto held that in a marital context, this age would be 15 – thereby further subjugating the minor wife, who in all probability was coerced into marriage.
But in stating that sexual intercourse by a man with his wife, (who is not under fifteen years of age), is not rape, the state robbed all married women of their right to sexual dignity, in favour of the sanctified institution of marriage.
However, in pronouncing that sexual intercourse with a minor wife will be deemed rape, the court in-principle has declared that a marital bedroom is not an inviolable space.
To that extent, the judgment is laudable and truly welcome. At the same time, the judgment also jettisons one patriarchal legal provision basing it on another. One must take into account the implications of the amendment to Section 375 that was made in 2013, which raised the age of consent for women to 16 to 18 years. The amendment, which saw women as mentally and psychologically incapable of understanding consent at such a young age also stripped the right away from minors in general to explore their sexuality and criminalised even those who consensually engaged in sexual activity.
The arguments to bring in this amendment stemmed more from social anxieties about women’s sexual agency than legal jurisprudence. ‘A woman is not mentally and psychologically fit to fathom the meaning of consent until she attains adulthood’, it was held.
The current ruling has brought in a kind of legal uniformity over the age of consent, yes, but in doing so given increased legitimacy to the idea that a minor woman is incapable of consensually engaging in sexual activity.
But here is a more vital question the court could have asked. If a minor is incapable of grasping the meaning of consent, is she capable of grasping the meaning and implications of marriage? The Prohibition of Child Marriage Act, 2006 holds that child marriages are voidable, but not void. The legality of child marriages and the illegality of sexual intercourse within those marriages could prove to be inherently irreconcilable. How will the state ensure that there is no sexual intercourse once a minor gets married and moves into her marital home, as is the norm?
While the Supreme Court judgment comes as a breath of fresh air, we are now left with a somewhat irreconcilable situation. While, on one hand, we have a blanket law which denies the right of minor’s to engage in sexual activity irrespective of their consent, on the other, we have a law which does not deem an inherently abusive, coercive and demeaning practice of child marriages void.