Child Marriage – Not a Child’s Play: POCSO’s Response

ABSTRACT

This is my son” 15 year old Maina replied, when I asked her about the crying child she was feeding. Taken aback, I further enquired her, when she got married. She replied when her age was only 13. This incident proved that the proverb “The Hand that Rocks the Cradle is the hand that rules the world” does not always fits in reality. The practice of Child Marriage is nothing new for us. Consummation of marriage is a usual affair after marriage. However, the custom of consummation of marriage when one of the parties is a child is one of the thought provoking issues. Marriage before 18 years is a violation of human rights and consummation of that marriage is equivalent to ripping apart a child’s bodily integrity.

The main objective of this article is to look into the legislative initiatives and the judicial trends in relation to the consummation of child marriage. The concepts of marital rape and ‘consent’ are further dissected by the author in this article in the light of the POCSO Act, 2012. The author also aims to include various statistical data on these social evils and finally the article concludes with the help of the analysis of various judicial decisions.

An Overview

We are guilty of many errors and faults, but our worst crime is abandoning the children, neglecting the foundation of life. Many of the things we need can wait. The child cannot; right now is the time his bones are being formed his blood is being made and the senses are being developed. To him we cannot answer ‘tomorrow’. His name is ‘today’.

  • Gabriela Mistral, the Nobel Laureate

Marriage as an institution has its own sanctity and importance in an individual’s life. It is a form of celebration for both the families as well as the newlywed couple. Traditionally, marriage is regarded as one of the important relations between two individuals through which the human society sustains. Sanctity of this institution of marriage continues only when the wed-lock is between two consenting adults. The same institution loses its piousness if it is practiced in a sinful manner, practices like Dowry, Child marriage, Honor Killing etc. that degrades basic human values.

Child marriage is a burning issue in today’s world and it is practiced across the globe. Although, under developed countries like Nigeria, developing countries like India is successful to acquire the top positions in the list, but developed countries like USA has not failed yet to be enlisted in the list. Marriage at a tender age not only affects a child’s mental stability but also has a detrimental effect on the emotional, physical and mental development of a child. The menace of Child marriage is not new to the Indian Society. It is a prevalent practice since centuries when a child is married off even before she understands the meaning of marriage. The then provinces of Rajasthan, Bengal, and Kashmir had this problem deep rooted in their cultures, which at times are due to some religious cause or social practice or socio – economic conditions. However, during the British Raj period, social reformers like Ishwar Chandra Vidyasagar, Swami Dayanand Saraswati, Jyotiba Phule had raised their voices to create awareness amongst the mass in order to curb this menace. The initiative that was started by these social reformers, had never reached to its finish line successfully, because still now this social evil has not been curbed.  Regardless of its roots, child marriage constitutes a gross violation of human rights, leaving physical, psychological and emotional scars for life.[1] Marriage between two individuals is followed by consummation of marriage between them. Now the question arises that, what if one of them is a child? Consummation of marriage in child marriage not only puts a mental pressure on the bride, rather it torments her bodily integrity. Marital rape in India is not an offence till now, but does the scenario remains the same in cases of child marriage? How the emerging judicial trends do responds to these issues with regards to child marriage? The legislative initiative and the analysis of the short comings and existing gaps of those initiatives are aimed to be answered in this paper. The efforts by different organization to curb this menace are also a part of the author’s research and the analysis of various statistical data will also be a part of this study.

Child Marriage in India: A menace

The primary question to be answered in this research is that who can be defined as a child? The Convention on Child Rights clearly define child as a human being below the age of eighteen years, unless the law of the land to which the child is the subject provides for an earlier age[2][i]. At this tender age where both the mind and the heart are fearless and a child needs proper care, protection and education, ‘child marriage’ is an unfamiliar concept for them. Marriage for them is not about responsibilities, it’s about new clothes, gifts and sweets. But the concept of child marriage is different, in its real sense. Section 2 (b)[ii] of the Prohibition of Child Marriage Act, 2006[3] clearly defines the concept of Child Marriage and explains it to be a marriage where one of the parties is a child. However, we can define child in accordance with Article 1 of the Convention on the Rights of the Child, but in case of child marriage, a child shall be defined according to Clause 2 sub – clause (a)[iii] of the Prohibition of Child Marriage Act, 2006[4]. According to PCMA a child can be defined as a female below 18 years and a male below 21 years of age. Hence, according to section 2 (b) of the PCMA if either of the contracting parties to the marriage is below the prescribed age – group that marriage is considered to be a child marriage in India.

At the beginning, it has already been stated that the menace of child marriage has affected a larger portion of the globe, be it the developing, developed or under – developed countries this evil is spreading like a wild fire. In a recent UNICEF study, India has ranked among top three countries with the maximum number of child marriage. In India the child marriage rates are as high as 47% for child brides between the age group of 15 – 18 years, and the percentage of child brides below the age of 15 years is of 18%[5]. This menace is a gender neutral practice, both the girl and the boy child is affected, however, the girl children are affected more than the boys, because rate of child marriage is higher among the girls than the boys and also according to our age old customary practice also in accordance with the post marriage rituals, a girl has to leave her maternal house and go along with the groom at her in – law’s place. This pain of separation from the parents in such a younger age affects a child mentally and emotionally. The pain gets doubled when the consummation of marriage occurs with the child brides. The paper in the next section deals with consummation of Child marriage.

Consummation of Child marriage

Before analyzing the concept of consummation of Child marriage, let us briefly look into the conditions of marriage under a uniform statute, i.e. Special Marriage Act, 1954[iv], which is reiterated in the Hindu Marriage Act, 1955[v]. The black letters of the law states that age of the parties to marriage must be eighteen for the bride and twenty one for the bridegroom and also talks about the consent of the parties for the marriage. However, Muslim law stands apart from this general principle. In this scenario, where the letters of the law clearly states that the marriage between individual must be after certain age, such marriages below the prescribed age limit stands void in the eyes of law and is a gross child rights as well as human rights violation of the individual.

Consummation of marriage is one of the essentials of a married life. This concept has been reiterated in many civil as well as personal laws. Biologically an adult body is ready with an adult mind to understand the meaning and effects of consummation of marriage. An adult body is also capable of willfully consenting for the consummation of marriage. However, referring to the first sentence of this section, a question can be raised that, if the essentialities of marriage is locked under the roof of consummation of marriage, isn’t it a matter of patriarchal hegemony? In this context, debate can be stretched long. But basically, the issue here involved is Consummation of Child marriage. In this scenario, consummation of child marriage is not only a matter, that will not only affect a child biologically, but also, consummation of child marriage is an activity that mentally, psychosocially, psychological affects a child, his/ or her adolescents and finally the impact is farfetched and is stretched even as an effect of how he grows as an individual. Child marriage at the first instance seizes a child’s right to childhood as discussed earlier, but consummation of child marriage rips apart a child’s soul. Not only bodily integrity and basic human rights are being seized; such consummation of marriage at times succumb the victim’s right to life too. In an ICRW report till 2017, child brides often face a higher risk of contracting HIV because they often marry an older man with more sexual experience. Child brides often show signs symptomatic of sexual abuse and post-traumatic stress such as feelings of hopelessness, helplessness and severe depression[6]. Apart from the above mentioned issues, mortality rate in child marriage is also a burning issue. The infamous Phulmoni Dasi’s[7] case where the 10 year old girl succumbed to injury after the sexual intercourse with her husband is a leading example of the result of the menace of child marriage. This case marks a milestone in marital rape cases dated back in 1890.

As held by the Supreme Court of India in one of the leading cases, ‘preservation of life is of most importance, because if one’s life is lost, the status qunte ante cannot be restored as resurrection is beyond the capacity of man[8]. The concept of Right to Life can be strongly emphasized with the observation of the Supreme Court in Francis Coralie Mullin v. Administrator, and Union Territory of Delhi[9] that, the right to life enshrined in Art.21 cannot be restricted to mere animal existence. It means something much more than just physical survival. The right to life includes the right to live with human dignity. The question to be answered is where is the human dignity of the child who lost his or her bodily integrity, because of the consummation of marriage which he/she hadn’t consented for. A young mind and body that is crossing her age of puberty and already fighting with the hormonal and biological changes that usually an individual faces; raises a question on our so called civilized society which snatches her under the shackles of wedlock for which she is not even ready. The main question arises in this situation is that can the consummation of marriage which happens between two parties where one of the party is incapable to give the willful consent for such consummation be considered to be the commission of the offence of rape? The next portion of the article deals with the response to such question.

Marital Rape in Child Marriage: An IPC – POCSO conflict – ANALYSIS

Marital Rape in India has always been a debatable topic. But the paper strictly deals with the marital rape concept in child marriage. The general statute that is the Indian Penal Code, 1860 talks of penalizing the offence of rape under section 375[vi]. The section contains the exception which exempts marital rape from the definition of the offence. The ratio behind this might be a debate, what matters here, is the age of the child mentioned in the exception.

The exception talks of the action cannot be labeled as rape when it is done by a husband with his wife provided that the wife has attained the age of 15 years or above. There lies a repugnancy with other laws and the question comes up that, can a marriage be a valid marriage when one of the parties is below 18years? The subsequent issue lies here is what about children between the age group of 15 – 18 years? IPC is silent in all these issues and is not even at par with the Convention on the Rights of the Child, to which India is a member.

However, specific legislations like the Prohibition of Child Marriage Act, 2006 recognizes this anomaly of the general legislation and clearly mentions any marriage with a person below the age of eighteen years is termed as Child Marriage. The above mentioned statute prohibits such marriages. So, even if IPC does not recognizes the age gap but when a specific legislation prohibits such wed locks, then consummation of such marriages is also prohibited and amounts to rape. Specific legislations like POCSO, very clearly recognizes the offence of the consummation of marriage with a minor wife will amount to be an offence of Aggravated Penetrative Assault, under section 5 (n)[vii]. The stand became clearer after the judicial enthusiasm taken up in this matter in 2017 through the judgment of Independent Thought v. Union of India and Another[10]. The next part of the article deals with the judicial stand on the topic.

Legislative and Judicial Position on Child Marital Rape

The first rage to raise the voice against consummation of child marriage and unwillingness to stay with a husband, with whom she was married when she was a minor, was made in Rukhmabai’s case[11]. This case set the milestone in this arena when it held that a marriage is not binding on the party who has never consented for it. The issue of child marital rape before the judiciary is not a new issue. The issue was first identified in the pre – independence era when the Phulmoni Dasi’s[12] case was brought before the judiciary. This gave rise to the question of Age of Consent for sexual intercourse in a marital relationship with a minor wife. After this the Age of consent Bill was introduced in 1891. In this Bill, consent became a biological factor, where the only consideration is the biological capability of a woman to take any kind of penetration without any hurt or grievous hurt. The bill was accepted and the concept of consent given in the 1891 Bill, continued to be till the mid 20th century although it is also a part of the pre – independence period. But the amendment recognized the age of consent to be 12 years. However, with number of amendments finally the general law states the act of penetration to be rape below fifteen years[13], whereas various specific laws consider the age of consent to be 18 years and above.

In the scenario of legislative dichotomy, judiciary is the only hope to harmoniously interpret and set the law. In 2017, the Apex court set a landmark judgment[14] by stating that sex with a minor wife also amounts to be Rape. The judgment very clearly in its initiation states that the discrimination made in IPC under section 375 Exception (2) that a child below 15 years, is an artificial discrimination in an arbitrary manner.  This is a not only violation of Article 14[viii] and 15 (3)[ix] of the Indian Constitution, which clearly mentions about Equality before the law and regarding welfare legislations for the welfare of children and women; but also violates Article 21[x] of the Constitution, which guarantees right to life. The Hon’ble court while trying to clear the dichotomy of rape and penetrative sexual assault between IPC and POCSO clearly states that both are an act of rape as conventionally understood, and both disintegrates the bodily integrity of a girl child and puts her right to life as well as reproductive rights under threat and crushes down her human rights. The court while highlighting the horrors of rape clearly states that it is not only an offence against the individual but also against the whole society[15]. It destroys the entire   psychology   of   a   woman   and   pushes   her   into   deep emotional   crisis.[16] The judgment serving as a literature in this field further states that a marital status or the relationship of the man and the wife between the rapist and the victim does not convert the offender into a non – rapist and does not gives any special power to the victim to forget the pain of the offence that had happened to her[17]. The judiciary further suggested the lacunas in the existing statutes and the actions to be taken up by the state and the central legislatures to amend them.

Conclusion

 Lastly to conclude upon the author wants to state that the menace of child marriage needs to be controlled with strong hands and active minds. Children are the future of the country, they should have dreams in their eyes that can be turned to reality, not the fear of being dominated and raped every night by their spouse. Very soon, the country needs such laws that can answer this alarming situation. What is necessary is to ‘educate them, do not wife them’.


This Article is written by Sayantani Datta, Assistant Professor, School of Law And Justice, Adamas University
The manuscript was submitted for the National Seminar on Protection of
Children from Sexual Offences Organised by Bengal Law College in association with RostrumLegal on February 17th & 18th, 2018.


REFERENCES

[1] Lal, B Suresh. (2015). Child Marriage in India: Factors and Problems. International Journal of Science and Research (IJSR). 438. 2993-2998.

[2] Article 1, Convention on the Rights of the Child, General Assembly resolution 44/25 of 20 November 1989, available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx last seen on February 14, 2018.

[3] Section 2 Prohibition of Child Marriage Act, 2006, Act 6 of 2007, available at http://lawmin.nic.in/ld/P-ACT/2007/The%20Prohibition%20of%20Child%20Marriage%20Act,%202006.pdf

[4] Ibid note 4

[5] Girls not Brides, Child Marriage around the World : India, available at https://www.girlsnotbrides.org/child-marriage/india/

[6] Child Marriage Facts and Figures, International Center for Research on Women, available at https://www.icrw.org/child-marriage-facts-and-figures/

[7] Empress v. Hari Mohan Maiti (1890)

[8] Parmanand Katara v. Union of India, AIR 1989, SC 2039

[9] Francis Coralie Mullin v. Administrator, and Union Territory of Delhi, AIR 1981, SC 746

[10] Independent Thought v. Union of India and Another , Writ Petition (Civil) No. 382 Of 2013

[11] Dadaji Bhikaji v Rukhmabai IX Indian Law Reporter (Bombay Series )529 (1885)

[12] Supra note 8

[13] Section 375 Exception (2)

[14] Supra note 11

[15] Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490

[16] Supra 11, para 69 available at http://supremecourtofindia.nic.in/supremecourt/2013/17790/17790_2013_Judgement_11-Oct-2017.pdf

[17] Eisenstadt v. Baird 405 US 438, 31 L Ed 2d 349, 92 S Ct 1092

i] Article 1 of the Convention on the Rights of the Child:  For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

[ii] Section 2 (b) of the Prohibition of Child Marriage Act, 2006 “child marriage” means a marriage to which either of the contracting parties is a child;

[iii] Section 2 (a) of the Prohibition of Child Marriage Act, 2006: “child” means  a  person who, if a  male,  has not completed  twenty – one  years  of age,  and  if a  female, has not completed eighteen years of age;

[iv] Section 4 (c ) of the Special Marriage Act, 1954: Conditions relating to solemnization of special marriage.-
Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled namely:

the male has completed the age of twenty-one years and the female the age of eighteen years

[v] Hindu Marriage Act, 1955, Section 5. Condition for a Hindu Marriage.-  A marriage may be solemnized between any  two Hindus, if the following conditions are fulfilled, namely:

(iii) the bridegroom has completed the age of twenty one years and the bride the  age of eighteen years at  the time of the marriage

[vi] Indian Penal Code, 1860 Section 375 Rape —A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:—

(First) —         against her will.

(Secondly) — Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.

(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

[vii] POCSO, 2012, Section 5 Aggravated Penetrative Assault, (n) – Whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child

[viii] Article 14. Equality before law – The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

[ix] Article 15 (3) Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth – Nothing in this article shall prevent the State from making any special provision for women and children

[x] Article 21. Protection of life and personal liberty – No person shall be deprived of his life or personal liberty except according to procedure established by law

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