A ruling by India’s supreme court that deems all sexual relations with wives below the age of 18 to be rape is welcome but will prove difficult to enforce, experts have warned.
The verdict, pronounced on Wednesday, resolved a conflict within the country's legal system. On the one hand, the legal minimum age for marriage is 18 years for women, and 21 years for men. If either partner is below the legal age then the union is considered child marriage, which is banned, with caveats, in India.
But another law also permitted husbands to engage in sexual relations with their wives as long as they were older than 15.
“It made no sense,” said Kriti Bharti, who runs the Jodhpur-based non-profit Saarthi Trust that works to annul child marriages.
Although child marriage has been restricted by law in various ways since 1929, the most recent legislation, from 2006, left enough loopholes and was enforced weakly enough for the practice to continue. A census in 2011 found that at least 12 million Indian children under the age of 10 were married, of whom 7.84 million were girls.
The 2011 census data also showed that 30.2 per cent of married women had wed before turning 18, down from 43.5 per cent in 2001. However, the percentage of girls entering marriage between the ages of 15 and 18 rose from 26.7 per cent in 1998-99 to 29.2 per cent in 2005-06, according to other government data.
The 2006 law deemed a child marriage void only if the child was coerced or enticed into the union, and if they voluntarily filed aVictims petition for annulment. In such cases, the husbands, officials who solemnised the marriage, and the families enabling the marriage are all liable for prosecution, with a maximum penalty of two years’ imprisonment and a fine of 100,000 rupees (Dh5,640).
In reality, Ms Bharti said, it is difficult to encourage girls to come forward and ask for redressal. The law still does not regard every child marriage as criminal, which it should, she added.
“This means we’ve failed,” she said. “It means the direction we’re working in is not correct. We aren’t working on changing mindsets at all.”
Ms Bharti welcomed the court’s verdict on Wednesday. The penalties associated with rape are much stricter — prison sentences of up to 20 years, depending upon the severity of the crime — and may serve as a powerful deterrent.
But she also pointed to the difficulties that lay ahead. Convincing girls to come forward about forced marriage is difficult enough. “In rural areas, we can’t get people to even talk about sex or sexual abuse,” she said. “The minute it comes up, they quit the discussion. Girls will feel shy to talk about this, let alone report it.”
Komal Ganotra, a director at the non-profit Child Relief & You, pointed out that the law’s fundamental loopholes remained. The new judicial decision, she hoped, will “change the legal landscape by bringing about required amendments in the child marriage legislation and revamp strategies to prevent and prohibit child marriage”.
Ms Bharti said the court ruling was only a beginning. “The train has departed. Now we have to cross many stations before we reach the destination we’re aiming for.”
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