What amounts to rape? India’s Apex Court decides on saving the future | Sunday Observer

What amounts to rape? India’s Apex Court decides on saving the future

Marriage is one of the important social institutions, and a means of establishing a family through which society perpetuates. This social process is expressed in the form of rituals and symbols, especially, in the Asian Continent. But what is tragic is that female minors are still being forced to enter into marriages against their will. Statistics have revealed that 1/3 of girls in every developing country is forcefully married before they attain 18 years of age, the general minimum age of marriage.

India is one country where despite technological, scientific and health advancement, these archaic practices are imposed upon innocent girls.

Historical background

It is believed that child marriages were initiated in the 10th Century, where the Hindu villagers feared for the safety of their daughters during the times of Muslim invasions, and begun to marry them for their protection from the Muslim invaders.

The Muslim invasions have been said to have taken place throughout almost seven hundred years, and the marriage custom would also have prevailed all along. But, times have now changed drastically, but not the tradition of child marriage, or its deadly repercussions to individual girls and the society as a whole.

Child marriage has for so long been one of the many burning problems of Indian society. In India 45% of girls are wedded before they attain 18 years of age. According to the Registrar General of India (RGI) Report, Rajasthan has the highest percentage (i.e. 40.8%) of females married among 15-19-year-old girls, followed by Bihar (39.6 %), Madhya Pradesh (34.1%), Jharkhand (32.9%) and Andhra Pradesh (32.3%).

The status-quo

It is evident that these girls are not matured enough physically or sexually to go through marriage.

Despite such facts, this inhumane tradition has been practised for centuries by Indian parents and by the religiously blinded men and women, not to forget certain tribes of clergy, who have been defending their religious faith against numerous Human Rights mechanisms and scientific advancements.

But, factors such as social acceptance of girls in conservative societies and economic capabilities of many rural families also play a major role in these matters. It has been a rooted prejudice not only in India, but in Asia as a whole, that the place which belongs to females in society is as second class citizens.

Taking care of household matters and bearing children have been the job description for many women. Educated women are not respected and are constantly discouraged from pursuing careers.

Lack of economic support from the household as well as the misconception that the girl child is a “burden” to a family also provides leverage to the archaic custom of caging innocent girls into forced marriages.

Not only legal advocates and legal scholars, but also the UNICEF acknowledges this as a gross violation of Human Rights, in general, and a violation of Child Rights and Women’s Rights, specifically.

The Convention for the Elimination of all forms of Discrimination Against Women (CEDAW) and the United Nations Child Rights Convention, in both of which India is a signatory, has explicitly stated that.

It is also not a secret that these girls are more likely to face domestic violence and abuse than women who marry above the minimum age of marriage.

The marital rape percentage of India is also at a very disappointing rate, as Section 375 of the Indian Penal Code comes with an exception that sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is NOT rape.

This Section implicitly contends that it is not a punishable offence if a girl between the age of 15 and 18 years of age be sexually abused by her husband.

A hope for a better future

It is against all these injustices faced by these pressurized and vulnerable girls that the Supreme Court of India decided to rule against this law. India’s Supreme Court ruled on October 11 this year that a man who engages in sexual intercourse with his wife who is aged between 15 and 18, amounts to rape.

After a sequence of hearings conducted since the beginning of August, this landmark judgment has been delivered by the Apex Court of India in favour of millions of child brides who are in danger and peril.

A girl being born and bred in a society where she is unable to take decisions on inter alia, her marriage, will never even dream of going before law enforcement authorities to demand her Rights.

Thus, a Non-Governmental Organization named ‘Independent Thought’ went before the Courts last August, declaring that the current Penal laws are unconstitutional and violate Fundamental Rights of girl children who are Indian citizens by virtue of being arbitrary, discriminatory and devoid of dignity as it would render the same violation of Fundamental Rights under Article 14 (Right to Equality before the Law), Article 15 (Freedom from discrimination on grounds of religion, race, caste, sex or place of birth) and 21 (Right to life and personal liberty) of the Constitution of India.

Decision of the Court

This organization sought to criminalize the act of sexual intercourse with minor girls on the basis that it is derogatory of all norms and principles for which the human race has always stood up for.

It was also argued by them that a girl child being married off in such a manner is not making an informed decision by granting consent to the marriage due to her lack of education as well as physical and sexual maturity. The data and statistics of health consequences of child brides were also presented to the Court as proof of the arguments.

The numerous Human Rights treaties for which India has become a signatory were also brought to the attention of the Court.

“If a man has sexual intercourse with a wife who is below 18 years, it is an offence.

The minor wife can complain against the husband within one year,” said the court, also adding that lowering the legal age for sex to 15 for a married girl is “unconstitutional”. It was also declared that Exception 2 to Section 375 of the Indian Penal Code was unconstitutional, being arbitrary and discriminatory and therefore is in violation of Articles 14 and 15 of the Indian Constitution.

However, this law is not enacted retrospectively, making it inapplicable to the current child marriages that underage girls have already been entered into. But any future marriage of a girl below 15 years of age, if consummated by sexual intercourse by the husband, will amount to “Rape”. This renders child marriages void ab initio, i.e. void from its inception.

Coincidentally, as a surprise and to the appreciation of many Rights advocates, this verdict was delivered on October 11, the International Day for the Girl Child.

To meet the better ends of justice

Many Human Rights activists and Social activists have been working hard, day and night to rectify this long-rooted tradition and dawn a better tomorrow for the vulnerable girl children who have been taken for granted since time immemorial.

The legal framework and protective mechanisms that have been ensured by the Supreme Court is a strength and empowerment to such silent heroes as well.

Divya Srinivasan of the gender-equality group, “Equality Now” told Reuters that this judgment is a step forward in protecting girls from abuse and exploitation, irrespective of their marital status.

These activists have contended that the girls who complete secondary education have six times a less chance of forced marriage. Educating them is hence a very powerful tool to demand their freedom and liberty from outdated practices and social pressure. According to UNICEF, concerns have been raised on the implementation of these new laws, against all odds and challenges that any new law would face in such a traditionalist society where patriarchy and low rates of satisfactory law enforcement is ordinary and mundane.

However, it is the duty of the law enforcement authorities to make the black letter law come into life. Not only the state, it is the duty of every single person to respect the laws and follow them. Times have changed now and laws have been amended for the betterment of all citizens.

It is high time that all of our societies realize that we are still hanging onto laws enacted by our colonial rulers, who had amended their laws long ago, in accordance with the principles of Human Rights and the evolution of society.

Thus, all these attempts should not be left in vain, like seeds thrown on a barren land. All of the citizenry should set aside the numerous invalidated prejudices and strive together to make the future a much better place and an equal ground for the future generation. 

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