Published: Thu, October 12, 2017
Global News | By Stacy Ballard

India's top court rules sex with a child bride is rape

India's top court rules sex with a child bride is rape

But the court stopped short of revoking an exception in the country's criminal law that permits rape in marriage, now the subject of separate legal proceedings. The "exception in rape law is discriminatory, capricious and arbitrary".

Along with Niger, Guinea, South Sudan, Chad and Burkina Faso, India is one of the countries with the highest prevalence of child marriage, despite moves to empower girls and women and toughen penalties against the crime.

Dr. Vanita Raut, Gynaecologist said, "The girl is not mentally ready and there is a possibility of her getting infected with sexually transmitted diseases if sex is forced on her".

"Should this traditional practice still continue? On the contrary, there is every reason to give a harmonious and purposive construction to the pro-child statutes to preserve and protect the human rights of the married girl child", Justice Lokur said.

- The petition also said that Parliament can not allow the age of consent for sexual intercourse to be less than 18 as that would amount to the exploitation of girl child. What is also important is that they have recognized that child marriage and child trafficking are closely linked to each other.

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The Prohibition of Sexual Offence (POCSO) Act, which sets the age of consent at 18 years and therefore criminalises all sexual activity below this age, further complicated the issue.

Welfare schemes and "catchy slogans" are excellent for awareness campaigns but they must be backed by focused implementation programmes.

Advocate Gaurav Agrawal, appearing for the petitioner, had told the court that the distinction in treatment of a girl being 15 or 18 years of age was illegal and unconstitutional and must be done away with.

With Wednesday's verdict the age of consent is set at 18 for all girls, however, there's no age restriction for boys. "Girls may take it as a bad touch and will oppose it throughout their lives".

If wife files a complaint within a year of the sexual act, then the husband is liable to be prosecuted under the provision of criminal law.

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India's government says the practice of child marriage is "an obstacle to almost every developmental goal: eradicating poverty and hunger; achieving universal primary education; promoting gender equality; protecting children's lives; and improving women's health". Such a girl is required to repudiate her marriage before she attains majority and she can only repudiate the marriage, if the marriage has not been consummated.

Reacting to the judgment, author and advocate of men's rights, Jyoti Tiwari said, "Isn't it again blaming man for everything?" The group said it contradicted the legal age of consent.

The number of underage brides has declined minimally in rural areas over the past 15 years, and actually increased in urban areas, according to the report. "A void marriage is no marriage", it said.

Section 13 (2)(iv) of the Hindu Marriage Act, a child bride under the age of 15 years must repudiate the marriage after attaining the age of 15 years but before she attains the age of 18 years, i.e. even before she attains majority.

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