Article 375 and Recent SC Judgement

Recently, Supreme Court of India gave landmark verdict stating that, a man who has intercourse with a wife less than 18 years can be charged of rape. The Judgement comes in the light of petition filed by the NGO named Independent Thought. This is a low priority topic for your examination but following questions should be considered:

1. What is the disparity between Section 375 of Indian penal code and other children related acts?
2. What is current status / data on Child marriages in India?
3. Weather this judgement is a step towards complete banning of child marriages?
4. What can be positive implications of the judgment?
5. What are limitations of Judgement?
6. What are historical laws related to child marriages?

What is the disparity between Section 375 of Indian penal code and other children related acts?

The age of consent for marriage of girls is 18 years in India but as per section 375 of Indian Penal code – which defines the offence of rape, has an exception clause that says intercourse or sexual acts by a man with his wife, not below 15 years, is not rape. The petitioners argued that such an exception violates Article 14 and article 15 of the constitution, by discriminating against married women. The recent judgement of Supreme Court has corrected this anomaly. Further, this section was also defeating the purpose of the Prohibition of Child Marriage Act and violated the international conventions to which India was a signatory.

What are current statistics of Child marriages in India?

Prohibition of child marriages act was enacted in 2006, yet child marriages are in vogue. The recent statistics of child marriages in India are as follows:

• Nearly three percent of girls are married in the age group of 10 to 14 years.
• As per National Family Health Survey 26.8% women were married before 18 years.
• One out of every 5 marriages violates provisions of the Prohibition of Child Marriage Act.
• The state Rajasthan has the highest incidence of child marriages

Child marriages: India vs. global context

The below graphics shows that India has largest number of Child marriage incidences around the world.

What are implications of recent Judgement?

The recent Supreme Court verdict has the several positive implications. Firstly, the court has dissociated matrimony from reproduction by stating martial sex with a child bride will constitute a rape. This provision largely discourages child marriages. Secondly, so far, the laws pertaining to children including those covering child marriage and juvenile justice are gender neutral which ignored the fact of greater vulnerability of girls. But this judgement shown some positive discrimination towards girls. This will mark a beginning in making social policy more tuned to social reality. Thirdly, in some way the judgement has effect of limiting marriages before age of 18. The Supreme Court also asked the Centre and the states to take proactive steps to prohibit child marriage across the country. By this act the court ended the disparity among Section 375 and POSCO act, juvenile justice and  other child related acts.

Trivia Facts on Child Marriage Laws

• Age of Consent act was enacted in 1891 which prohibited the marriage of girls below 12 years old.
• The Sarda Act which was passed in 1930 further increased the marriage age to 14 for girls
• By Prevention of Child Marriages Act, 2006, the government criminalized child marriage where any man above the age of 18 years marrying a minor girl. However, such marriages were considered voidable at the choice of either of the parties, but not void at inception. The limitation of this act is that, it does not banned child marriages, it only prohibits child marriages.
• POCSO (Protection of Children from Sexual Offences Act) was passed in 2012 and it deals with sexual offences against persons below 18 years of age.

What are limitations of judgement?

Rape cases can be filed against men who have sex with wife between 15 and 18 years of age, but only if they approach court within a year of the offence. It does not provide any distinction between minor and major in case of men. The judgement does not mentions about the persons married under Muslim personal law which permits girls below 18 to be married. The judgement restricted itself to the Sec 375 of Indian Penal code, but the larger issue of marital rape of women above 18 years is still unaddressed. The judgement will effect only for future instance not for already married ones.

What further actions to be taken for eradication of child marriages?

Lack of education is one of the reasons for child marriages in India. Eradication of child marriages can be achieved only by ensuring girls complete higher secondary education to the girls. Strong political will and commitment towards the issue of child marriage is required. Creating awareness about negative impact of child marriages on health of the girls through large number of campaigns and putting more emphasis on gender equality rather than personal laws, are other suggested steps.