A female child below the age of 18 cannot be treated as a commodity with no say over her own body, India’s top court has said, ruling that sex with a wife below the age of 18 is rape, The Hindu reported. The landmark court decision is likely to affect hundreds of thousands of child brides in the country.
"Human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance,” the Supreme Court bench said.
This court ruling has officially ended an exception in the law for men married to girls aged between 15 and 18 years of age.
Though the age of consent in India is 18, an exception was previously made in the criminal law if a man has an intercourse with his wife aged 15 or over. The court said it is "discriminatory, capricious and arbitrary."
The court said the exception in the law was an "anomaly" which mandated sex with a girl below the age of 18 with or without her consent and termed it a "statutory rape."
“A child remains a child whether she is described as a street child or a surrendered child or an abandoned child or an adopted child. Similarly, a child remains a child whether she is married child or unmarried child or a divorced child or a separated or widowed child.”- Supreme Court of India
Ending this exception made in the law which held men having sex with their minor wives legal, the court said it “violates the bodily integrity of the girl child."
The court said what was acceptable decades ago may not be acceptable today.
"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.
The government of India defended the exception in the law that gives immunity to men having sex with underage wives, saying the “institution of marriage must be protected” and that such laws were made taking into account the “socio-economic realities of life in India”.
"Just because there are child marriages across the country as a tradition, should it be accepted? Times have changed and what was acceptable a few decades ago may not necessarily be acceptable today," the court responded to the government of India’s submission.
Every year, thousands of child marriages occur in India despite the minimum legal age having been defined in law.
Child rights activists say this court ruling is a good starting point.
Kriti Bharti who has been working in this area in the state of Rajasthan told the Guardian the attitudes favouring child marriage were deeply entrenched in the community.
“A minor girl being abused by her husband will tell her mother: ‘I’m feeling pain. [Sex] is uncomfortable. Please help me,’” she said. “But mothers say: ‘It’s your destiny. You are a female so you have to go through this," she told The Guardian.
Though Ms Bharati said the decision will be difficult to enforce, she said it would give the victims legal protection.
“From now on, a girl who is exploited can go to the police, can go to the justice system and say: ‘I am being abused'."
The court made it clear it was not getting into the subject of marital rape.
