By Alyssa Tolentino
On October 11, the Indian Supreme Court ruled that sexual intercourse with a wife younger than 18 is rape with or without her consent, granted the wife file a complaint within a year. Any husband found guilty can face up to 10 years of imprisonment or even a life sentence. The ruling, which coincided with the International Day of the Girl Child, also raised the age of consent to 18 years old.
Prior to this verdict, the Protection of Children from Sexual Offences Act (POCSO) recognized sex with a person under eighteen as rape. However, an exception clause found husbands not guilty for engaging in sexual intercourse with wives above the age of 15, consensual or not.
CNN reports that the Indian government had defended the clause, stating that although child marriage is illegal under the Prohibition of Child Marriage Act (PCMA), “the harsh reality is that 20 to 30 percent of female children below the age of 18 years got married in total violation of PCMA.” Child marriage remains common throughout India, though mostly in rural areas. Statistics from the United Nation’s children’s agency, UNICEF, show that India has the highest number of child brides, reporting 26.6 million in 2016. Furthermore, between 2008 and 2014, 47 percent of girls were married before their 18th birthday, and 18 percent by their 15th birthday.
According to Al Jazeera, women’s rights activists hail the ruling as a step in the right direction towards curbing child marriage and opening up the discussion of marital rape and abuse. Jagmati Sangwan, women’s activist and member of All India Democratic Women’s Association (AIDWA), believes that the new law will encourage child brides to “speak up, resist, and rebel.”
However, the court’s decision, with its humanitarian and democratic aspects, has been met with opposition and fear of backlash. Some have criticized the ruling’s focus on criminalizing young boys while ignoring the role played by parents in arranging a child marriage, as well as the clerics who perform them, according to USA Today. Coupled with an increasingly sexually active youth, others see the verdict as a tool for older, more conservative members of society to harass young people who have had consensual sex.
In terms of its practicality, CNN describes the verdict as a “toothless” law. Concern has arisen over the reality that men will be charged only if wives step forward to file a complaint. Sudha Ramalingam, a lawyer involved in rescuing girls from early marriages told Reuters, “In a situation where child marriage has social approval, who is going to help the girl complain against her husband? No one, not even her close family will help.”
In terms of eliminating child marriage, Flavia Agnes, women’s rights lawyer and founder of the NGO Majlis, points out that it is not possible from solely a legal side, instead citing the necessity of educational empowerment and socioeconomic change. Nevertheless, India’s Supreme Court ruling can be seen as a victory paving the way for more change to be made for the betterment of young women in India.