Protecting The Girl Child: Indian Supreme Court Rules Sex With A Child Bride Is Rape

This year, India marked International Day of the Girl Child with a very significant Supreme Court ruling – sex with a child bride will now be considered rape. This is a landmark decision to end an exception in the law for men married to girls who are above 15. The court has declared that lowering the legal age for sex to 15 if the girl is married is unconstitutional.

“Exception in rape law is discriminatory, capricious and arbitrary…It violates bodily integrity of the girl child. If a man has sexual intercourse with a wife who is below 18 years, it is an offense. The minor wife can complain against the husband within one year,” said the court.

Rape and child marriage laws of India disagree on age of consent. The Indian Penal Code or IPC defines sex with a girl below 18 – with or without her consent – as a crime. However, an exception is made if the girl is his wife and not below 15.

Equality Now, a global non-profit focused on gender equality, has been campaigning on this exemption in the law, both as part of their work to repeal unjust rape laws around the world. You can see their Rape Law Report released early this year.

“Equality Now welcomes the decision of the Indian Supreme Court today, on the International Day of the Girl Child. Exception 2 to section 375 of the Indian Penal Code which allowed marital rape as long as the girl was over 15 years of age was in contradiction with India’s own laws on prohibition of child marriage and child sexual assault,” said Divya Srinivasan from Equality Now.

“The judgement is a step forward in protecting girls from abuse and exploitation, irrespective of their marital status. This positive decision by the Supreme Court will hopefully encourage the Indian Government to protect all women by removing the marital rape exemption in all cases.”

Though the judgement renders all consensual sex between married couples under the age of 18 to be a criminal offense, it must be noted that the age of consent for sex for all unmarried children was raised to 18 by the the Criminal Law (Amendment) Act of 2013. Today’s judgement merely puts victims of child marriages on par with other teenagers in terms of their legal ability to consent to sexual intercourse.

Divya explained the change is immediately applicable under Indian law, and the Government need not pass any legislation for the change to come into effect. And although this is welcome news, India still does not have a law for marital rape for other women.

“Men who rape their adult wives are still protected from criminal liability under the law. Hopefully, this positive decision from the Supreme Court will encourage the Indian Government to protect all women by removing the marital rape exemption in all cases,” she said.

There have been a number of recent progressive rulings from the Indian Supreme Court, and even India’s constitution has a number of laws about equality. But how can these laws on paper become an ingrained part of the culture as well?

“Equality Now believes that having just and equal laws is an essential precondition to social change and equality between both men and women, and girls and boys. However, in order for good laws to have an impact on the ground, the Government needs to have the political will to enforce the law, and to promptly investigate and prosecute cases of child marriage and sexual abuse of children,” said Divya.

Although marrying a minor or solemnizing a child marriage are criminal offenses under Indian law, very few people are actually prosecuted for these offenses, she added. In order to change this culture, the discriminatory and harmful family and community norms and stereotypes that lead to human rights violations of girls and women, such as dowries, need to be addressed.

When girls in countries like India are given opportunities to thrive on an equal footing as boys, the widespread effects are exponential not just for the individual, but also their families and communities.

“Studies show that girls who are not pushed into “child marriage” are more likely to complete their education and earn an income. As mentioned by the Supreme Court, these added protections also have an impact on the reproductive choices of women and girls. Women who have their babies later in life are healthier and raise healthier, educated children, which in turn helps end the cycles of inequality, discrimination, abuse and poverty,” said Divya.

“Governments, families and communities need to realize that while marrying off a girl early may reduce the risk of uncertainty regarding her prospects or damage to the family’s “honor”, the physical, psychological and social risks to the girl herself remain. Data from the UN shows that the higher the minimum age of marriage, the lower the incidence of child marriage.

The causes of child marriage are complex and vary across countries. However, the common issues running through traditions that perpetuate child marriage are gender inequality and pervasive violence against women and girls. The Indian justice system has taken a major step in dismantling harmful norms that will hopefully lead to even more rights and protections for the girl child.

 

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