ASIACALLING

India criminalises sex within child marriages

"In a landmark judgment earlier this month, India’s Supreme Court criminalized sexual intercourse with a wife under the age of 18 – it will now be considered rape. "

There are millions of child brides across India, many of them married to older men. 

In a landmark judgment earlier this month, India’s Supreme Court criminalized sexual intercourse with a wife under the age of 18 – it will now be considered rape. 

As Bismillah Geelani reports, the ruling is being lauded as an effective deterrent against child marriage. And many are hoping that the ruling will open the door to outlawing marital rape altogether. 

A content warning – this report contains an account some listeners may find disturbing. 

Twenty-three-year-old Roshni was just 16 when she fell in love with her college friend, Raghav.

They dated for a year and then decided to get married, despite opposition from their families. 

But within days of the marriage, Roshni was regretting her decision.

“I thought that marriage, husband means I would live a happy life. But things turned out to be different.”

Roshni says sex with her husband became a constant torture for her.

“Every night after the wedding was a nightmare for me. He would never even ask my permission. So even if I am well or unwell he used to forcefully do all these abuses to me. He used to beat me up, he used to put a pillow on my face, he used to insert artificial objects and he used to do it unnaturally,” she said. 

“And then it went not only once or twice but like 5 times in a night. He used to slap me, abuse me, hold me by my hair and push me to the floor.”

Roshni couldn’t take it anymore and left her husband.

She tried to take legal action, but since marital rape is not recognised as a crime in India, her plea was dismissed.

But earlier this month, the Supreme Court delivered a ruling that has given new hope to thousands of women like Roshni.

The court ruled that sex with an underage wife will be treated as rape.

The court overruled an existing law that permitted men to have sex with their wives aged 15 and over.

“The age of consent universally was 18 years for all the children except for the provision which kind of differentiated between married and unmarried girl.And that stood unconstitutional as per our understanding and we brought it before the Supreme Court and the judgment today in two lines says that if anyone now marries a girl child below the age of 18 years and if the girl complains within a year of sexual intercourse the husband can be prosecuted for rape.” Vikram Shrtivastav explained. He is the founder of Independent Thought, the NGO that filed the petition in court.

The ruling has been widely welcomed with many seeing it as an effective measure to curb the practice of child marriage.

“I would definitely call it a progressive one because in many ways it has removed the anomaly between the age of consent and the age of marriage,” commented Lalitha Kumaramangalam, former chairperson of the National Commission for Women.

“ This will prove a deterrent for child marriages. India stands 3rd in the world when it comes to child marriages and that is a shame. Now it is the job of both the civil society and the government to ensure that this judgment is widely publicised and young girls are made aware of the fact that they now have a choice,” she said.

There are an estimated 23 million child brides in India.

While the court order criminalizes sex with a child bride it does not say anything about the legal status of child marriage itself. Child rights activist Meenakshi Ganguly says that leaves a huge gap.

“Where two young people or one older person and a younger girl are married, the marriage remains legal but sex within it becomes illegal. So if we want to take this as a step forward and if this were to be the answer to child marriage we will have to make the child marriage law such that it is illegal to marry your child,” Ganguly argued.

Religious groups, both Hindu and Muslim, are strongly opposing the court order with almost identical arguments.

“We are afraid whether it is going to be a stepping stone or are they trying to build a bridge towards a Marital Rape Bill which has been aggressively pushed by the west and many UN agencies,” said Rahul Eswar, a Hindu activist and author.

“It is not about child marriage, it is not about rape or atrocities, much deeper socio-cultural and legal implications are involved.” Eswar continued, “According to Indian culture and tradition we believe marriage is a sacrosanct institution and there is a particular right to privacy in marriage which no institution, whether judiciary or any other, should intervene into,”

Women’s groups in India have for long been campaigning for recognition of marital rape as a crime. But fearing backlash from religious groups, the government has been reluctant to consider it.

Now, a marital rape petition is before the Delhi High Court. After the recent Supreme Court order, many hope this demand will also be met.

Kavita Krishnan, Secretary of the All India Democratic Women’s Association, says the time has finally come to criminalise marital rape.

“It is high time we said that it is immaterial what the relationship of a woman to a man is, whether she is a girlfriend, a wife, or whether she is unknown to the person she is accusing of raping her, the only consideration can be whether consent was violated or not,” Krishnan stated.

• Marital rape India
• Child marriage India
• Supreme Court India
• Bismillah Geelani