The Supreme Court’s landmark decision to strike down a legal clause that permitted men to have non-consensual marital sex with girls as young as 15 is a worthy first step. It has punctured the specious argument that just because something has been part of “tradition”, we must continue to overlook its heinousness and devastating impact on individuals, families and the country at large. The government had earlier defended the controversial exception by saying that although the practice of child marriage is illegal, “it is also a fact that a large section of Indian society, which is living in rural areas, continues to follow such practices as part of their tradition”. This is ingenuous. It is clear as daylight that despite all the pussyfooting and skirting around the issue, there is no argument for child marriage. It is illegal, immoral, ruinous for the child’s education, health, development and bad for any nation. All this should be obvious, but despite being made illegal, the practice of child marriage has continued because the political class and the government chose to be ambiguous in the positions it took. Now the Supreme Court has rightly taken away the fig leaf of tradition to conceal a barbaric practice.
Tradition is not sacrosanct. When it harms the individual and society, it must be junked as has been done with practices like sati. But as is evident, the court order has raised a plethora of new questions, the answers to which will determine the effectiveness of the order. In its ruling, the court noted: “In our opinion sexual intercourse with a girl below 18 is rape regardless of whether she is married or not.” It added: “The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved.” It makes clear that without criminalising sexual intercourse within marriage with a girl below 18, the Prohibition of Child Marriage Act can’t be really enforced. This deliberate ambiguity is what has led to a situation where child marriage is rampant in the country. Hearteningly, the ruling scraps the anomalies and exceptions in various laws relating to age of consent. With the court amending the rape law and declaring sex with an underage wife illegal under IPC, the underage wife can file a complaint against her husband within a year of the committed offence. But what does this effectively mean for India’s child brides?
How easy will it be for them to use the verdict? Will the number of child marriages really come down? As in everything else in India, the real challenge will be implementation, specially in states where thousands of child marriages take place every year. As Flavia Agnes, women’s rights lawyer and founder of NGO Majlis, notes, the verdict is a big milestone but can be implemented “only if the wife files a complaint”. The State cannot implement it on its own, without a complaint from a victim. Given this, little will change on the ground unless the political class, across the ideological spectrum, ensures the police and the criminal justice system backs the minor girl who is forcibly married off. Without that, she is most unlikely to have the courage to go to a police station and file a rape complaint against her husband. For a girl to get such backing, a few other things are needed. Child marriages are typically arranged by parents, who are most unlikely to back the girl. Therefore, the brave girls who choose to use the court’s ruling to extricate themselves from their horrific situation need safe refuges and free legal assistance. If the government now has the sense to not challenge the Supreme Court verdict, it must create such support systems. The reality is that a girl opposing child marriage comes under immense mental and even physical pressure from parents, other relatives, neighbours, sometimes friends as well. To whom will she turn? She may have to leave home. Where will a girl in her early teens go? Unless there are practical answers to these questions, child marriages will continue and child brides will continue to be raped.
For the court’s order to be operationalised, several other steps must be taken beyond the legal arena. To empower the girl so that she can speak up, resist and use the law, female literacy has to improve and girls must be enabled to at least complete school. That opens more economic choices and the possibility of empowerment. Only then will she be able to exercise the options available to her under law and say no to child marriage. The stakes are very high; the damage spans more than one generation. Child brides lead to underage mothers. For example, Uttar Pradesh reportedly has the highest number of children born to children — around one million. Read that statistic alongside maternal mortality and infant mortality and you will know the savage destructive nature of early marriages. Child marriage is not only a human rights issue, it is equally a human development issue. And states which trail in human development like UP or Rajasthan also typically have a high number of child marriages — which lead to low education levels among girls, poor maternal health and higher infant mortality rates. The court order will hopefully deter many parents who marry off their daughters below 18. It should also deter parents of would-be grooms because marrying a minor may now land the young man and them in jail. But the government cannot rest on hope. It must put the support systems in place. The future of India is at stake here. Talk about development and “New India” means little if child marriage continues taking a huge toll on the development of millions of underage girls. As of now, India has the highest number of child brides in the world — more than 23 million. Changing this sorry statistic is a must.