Saturday, December 3, 2022

Dangerous Liaisons

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Retaining the minimum age of marriage for a girl at 15 under the amended law has made many child brides vulnerable to abuse. The law is also at variance with others, allowing the guilty to go scot-free

By Usha Rani Das

When Madhuri was 13, she was married off to a man twice her age. Today, at 45, she laments her decision to discontinue her studies. Her father had accepted the first marriage proposal that came his way and before she could realize, Madhuri was caught in a vortex of abuse—sexual, physical and mental—both by her husband and her in-laws. When she returned home to seek an escape from this torture, her parents refused to accept her due to societal pressure. What followed was years of continued abuse, torture and silent tears.

Similarly, Archana was married when she was around 10 to a 30-year-old man. “I had appeared for my Class III exams when my father got me married. My husband was a XIIth pass and claimed to have a well-paid job. After two years, I realized he had lied to me but it was too late then.” Her husband is a vegetable-seller and struggles to make ends meet while she works as a maid in Delhi to pay for her education.


These two examples of child marriage highlight the horrors that follow it. Yet, the ministry of home affairs has decided to retain the minimum age of marriage for a girl as 15 years in the amended rape law. But this has had unfortunate consequences—it not only secures a married man from prosecution for the offence of unnatural sex with his wife, but from being convicted for marital rape. Worse, anomalies in various laws allow him to get away with it.

In response to a petition, the ministry had submitted a report before a Delhi High Court bench of Chief Justice G Rohini and Justice Sangita Dhingra Sehgal. The Bench said: “The social, economic and educational development in the country is still uneven and child marriages are taking place. It has been decided to retain the age of 15 years under section 2 of 375 (rape) of the IPC so as to give protection to husband and wife against criminalizing the sexual activity between them.” It further added: “Although the age of consent is 18 years and child marriage is discouraged, marriage below the permissible age is avoidable but not void in law on account of social realities.”

The social, economic and educational development in the country is still uneven and child marriages are taking place. It has been decided to retain the age of 15 years under section 2 of 375 (rape) of the IPC so as to give protection to husband and wife against criminalizing the sexual activity between them.

—Delhi High Court

The petition, however, claimed that existing penal laws were inconsistent as unnatural sex, which is punishable under Section 377 of the IPC, was non-penal under Section 375 if committed by a husband. The petition said: “The legal issue raised by the petitioner deserves to be settled/determined by this court in the interest of public at large, as the said uncertain/unsettled position of law has been infringing the respective rights of the husband and wife.”

The petitioner was a man who had married a 20-year-old girl in 2013. She later lodged an FIR against him for the alleged offences of rape and unnatural sex. However, the trial court discharged him for the alleged offence of rape but not for committing unnatural sex with his wife. The man was granted bail by the High Court in January 2015. The petitioner has said that his prosecution under Section 377 was contrary to the existing law as his purported act was protected under Section 375 and the unsettled position of law infringes on his rights.


Ironically, according to the Convention on the Rights of the Child, child marriage refers to the marriage of a child younger than 18 years old. This, according to UNICEF, is a violation of human rights. However, this is at variance with Section 375 of the IPC, which says: “Sexual intercourse by a man with his wife, the wife not being under 15 years of age, is not rape.” Further, Section 376 says that rape within the marital bonds is an offence only if the wife is less than 12 years.


If this Section is read in conjunction with Section 42A of the Protection of Children from Sexual Offences Act (POCSO) 2012, it is possible that the law can be interpreted to make the rape of a wife between 15 and 18 years a criminal offence. POCSO Act defines a child as any person below 18 years of age, and defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography. It prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life and fine.

Kriti Bharti, founder of Saarthi Trust, an NGO, told India Legal: “Retaining the minimum age of marriage for a girl as 15 will not only increase child marriage in India but child abuse too. The government is psychologically depriving them of their rights to fight back. If the government cannot stop this malpractice even after 100 years, it shows their inability.”

Ranjana Kumari, director of the Centre for Social Research, said that the government was undoing its own legal framework. “It will complicate things further for child rights activists. People will misuse the law. The offenders are hardly ever punished nor are such cases registered. A minimum age of 15 for marriage constitutes child abuse and forced consent as the child is not in a position to give consent for the marriage. This also leads to thousands of women dying during childbirth as their fragile bodies cannot take it. Where do we stand as a nation when it comes to banning child marriage? It is time we take a stand.”


Retaining the minimum age for marriage of a girl at 15 has resultant drawbacks. The girls will invariably drop out of school, have early pregnancies and are ill-equipped to raise the children. Parents sometimes marry off their daughters because they fear that later, as teenagers, they might have sexual relations and bring shame upon their families. Parents also worry that unless they marry them off early, they won’t be able to find them husbands.

UNICEF has warned that premature pregnancy and motherhood are an inevitable consequence of child marriage. An estimated 14 million adolescents between 15 and 19 give birth each year. Girls under 15 are five times more likely to die during pregnancy and childbirth than women in their twenties. If a mother is under 18, her baby’s chance of dying in the first year of life is 60 percent greater than that of a baby born to a mother older than 19. Even if the child survives, he is more likely to suffer from low birth weight, malnutrition and late physical and cognitive development.

The young age of these girls also means that they are incapable of fighting abuse from their husbands, leading to traumatic situations. Bharti mentions two cases: a 15-year-old who was married off to a 55-year-old sexually frustrated man and a 16-year-old married off to a 22-year-old who was abusing her sexually. “The girl came to me and pleaded: ‘Please save me, I am in a lot of pain.’ What can I say to her? That I can’t do anything as no law will be able to defend your case of marital rape?” asked Bharti.

Though these laws fail to protect us now, some of the leading child annulment cases used the support of these laws. Sargara was the first child marriage annulment case in India. Hailing from northern Rajasthan, Laxmi Sargara was married off at the age of one to a three-year-old boy. She came to know about her marriage when she was 16. Child brides are usually kept at their mother’s place till they attain puberty, after which the in-laws come to claim her. Sargara refused to accept her marriage and contacted Bharti who then gave her legal and psychological support. Three years later, she married a man of her choice.

Incidentally, child marriages are more common in north India. In Rajasthan and Bihar, marriages of girls under 18 are as high as 68 percent and 71 percent respectively. In Kerala and Tamil Nadu, on the other hand, it is 17 percent and 25 percent respectively, according to media reports.

Catch ‘em young has never been so controversial.

Lead Picture: Girls married early are denied the right to proper education, health and other privileges. Photo: UNI


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