SC resolves age consent issue, but may have opened a can of worms

Will it now be mandatory to report sexual intercourse in child marriage as well?

Forty six percent of women in India between the ages of 18 and 29 years were married before the age of 18 years. It is also estimated, that there are about 23 million child brides in the country. That they face sexual and other forms of violence is a reality.

However, there were some anomalies within the existing law that were allowing for violence against the child brides. The Indian Penal Code sets the age of consent at 18 years, it puts in the Exception 2 Section 375. By virtue of this exception, the husband of a married girl child between 15 and 18 years of age, can have non-consensual sexual intercourse with her, without being penalized under the IPC. The Prohibition of Sexual Offence (POCSO) Act, which sets the age of consent at 18 years and therefore criminalises all sexual activity below this age, further complicated the issue.

The Supreme Court order by Justices Madan B. Lokur and Deepak Gupta have resolved this anomaly through their judgement by reading down the Exception 2 to 375 and raising 15 to 18 years because the distinction between what constitutes rape of a child in marriage and not in marriage is arbitrary and not the best interest of the child. What is also important is that they have recognized that child marriage and child trafficking are closely linked to each other.
It is important to note that both the judges have repeatedly said that the order very clearly stated that this must not be interpreted as a judgement addressing marital rape in general.

The Supreme Court has done what it needed to do in the limited mandate that they had. But, in resolving the issue of age of consent, has the Supreme Court opened a new can of worms?

Since the law on child marriage, the Child Marriage Prohibition Act 2006 remains the way it is, it also means that any under-age marriage that has taken place remains valid and voidable.

By this order it will mean, that while the persons concerned remain legally married – they must not have sexual intercourse. The message is: Child marriage is legal if you can escape the law, but sex in it is not!

Further if they do have sexual intercourse, which by this order becomes an offence, given the Section 19 and 20 of the POCSO Act, will it now be mandatory to report sexual intercourse in child marriage as well?

We can only hope that doctors do not refuse to deliver children or offer medical help in case the girl in child marriage comes to them for fear of mandatory reporting. Who else will be responsible for mandatory reporting in case of sex within child marriage – will it include the parents who may have been responsible for the child marriage in the first place? Or are the complainants because they disapprove of the relationship between their daughter and her partner.

Finally, the concerns with age of consent being 18 remains. Far too many young people are getting caught in the criminal justice system for having had consensual sex. And with minimum sentencing, there is no escape for the boys and young men from incarceration.

Child marriage is a social evil, and it’s forced and perpetuated by adults. They are the ones who must be penalized. Not children. Unfortunately, simply criminalizing sexual activity amongst young people does just that.

Enakshi Ganguly is the founder co-director of HAQ: Centre for Child Rights


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