POCSO and Child Marriages in India: A Conflict of Laws

ABSTRACT

The present paper seeks to highlight the growing problem of Sexual offences on children in India and the changes and challenges Indian Legal system faces after the advent of Protection of Children from Sexual Offences Act, 2012 with its main objectives being to analyze the mainstream achievements of POCSO and the growing areas of concerns in its implementation primarily dealing with child marriages and consensual intimacy among adolescents.

It is appreciated that POCSO has indeed introduced stringent punishments for the offenders including child friendly techniques of law implementation .The definition given to Penetrative Sexual Assault (Section 3), Aggravated Penetrative sexual assault (section 5) are indeed well demarcated. The most potent weapon is Section 29 which raises the presumption against the accused. The Act engulfs the role played by NGO’S, experts, police, and special courts and has clear inscribed procedure. It is laudable that the number of cases registered for child abuse raised from 8,904 in the year 2014 to 14,913 in the year 2015, under the POSCO Act.[1]

POCSO Act inscribes punishment for sexual offences with child under the age of 18 years. Here the dual problem of Adolescent intimacy and child marriage comes into play. It is submitted that sexual intercourse with wife above 15 years is not rape under IPC. Owing to this lacunae Criminal amendment, 2013 inserted section 42A which gives the POCSO an overriding affect. But the courts have continued to give benefit of exception under IPC as seen by Yubusbhai Usmanbhai Shaikh v. State of Gujarat[2], Mujamil Abdul Sattar Mansuri v. State of Gujarat[3]. Thus, the child marriages prevalent under customary laws giving way to sexual intercourse with children comes with the purview of both IPC and POCSO. The present paper encourages the demarcations between the offences under two acts and clear application of section 42A is suggested as a way to curb the menace .The gap has now been filed by the Supreme Court judgment in 2017[4] where the scope of exception under section 375 IPC has been extended to 18 years.

The POSCO does not exercise jurisdiction to try rape cases of mentally challenged victims[5] and hence it is pertinent for the system to develop and inculcate the law in his regard. These areas and other issues such as Reporting and medical care to the victims will be dealt in the paper. The way to harmonize the present special laws for children and IPC will be presented in the paper in light of the landmark judgment of Independent thought vs. Union of India delivered on 11th October, 2017.

THE JUDGMENT AND ITS REPERCUSSIONS

The judgment handled the ever- lasting question whether sexual intercourse between a man and his wife aged between15-18 is rape or not? The view in the favor of girl child goes largely unsupported by the 172nd Law commission report where it was recommended that”  an exception be added to Section 375 of the IPC to the effect that sexual intercourse by a man with his own wife, the wife not being under 16 years of age, is not sexual assault”.

The view is supported by the exception 2 section 375 which explicitly states that “Sexual intercourse by a man with hisown wife, the wife not being under fifteen years of age, is not rape”. This situation was held arbitrary and serving no specific purpose by the court in the above case where it held that “The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. The artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child. The artificial distinction is contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in international conventions”.

EVIDENCE RELIED UPON

The court relied upon plethora of international conventions and reports to convey the idea that the sphere of child rights especially girl rights needs ample protection and care by the legislation.

According to Article 2 Clause 2 of The convention on the right of child (adopted by the General Assembly of United Nations on 20 November 1989) “State parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members”. It is evidently clear that any form of forced sexual intercourse by the husband of a minor wife comes within the purview of the above clause and needs protection.

In State of Punjab v. Gurmit Singh[6] “We must remember that a rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault — it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female.” And further Rape against minor child has multi dimensional repercussions for her and her overall being. As stated in Para 77 of the judgment “Firstly, a child is and remains a child regardless of the description or nomenclature given to the child. It is universally accepted in almost all relevant statutes in our country that a child is a person below 18 years of age”.

The Court further beautifully explained and demarcated in Para 64” The discussion on the bodily integrity of a girl child and the reproductive choices available to her is important only to highlight that she cannot be treated as a commodity having no say over her body or someone who has no right to deny sexual intercourse to her husband. The human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance.”

In Suchita Srivastava v. Chandigarh Administration[7] the right to make a reproductive choice was equated with personal liberty under Article 21 of the Constitution, privacy, dignity and bodily integrity. It includes the right to abstain from procreating. In paragraph 22 of the Report it was held: “There is no doubt that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods”

INDIAN LEGISLATIONS

The Protection of Children from Sexual Offences Act, 2012 (for short ‘the POCSO Act’) is an important statute under consideration.  The Statement of Objects and Reasons necessitating the enactment of the POCSO Act makes a reference to data collected by the National Crime Records Bureau (NCRB) which indicated an increase in sexual offences against children. The data collected by the NCRB was corroborated by the Study on Child Abuse: India 2007 conducted by the Ministry of Women and Child Development of the Government of India. The Preamble to the POCSO Act states that it was enacted with reference to Article 15(3) of the Constitution. The Preamble recognizes that the best interest of a child should be secured, a child being defined under Section 2(d) as any person below the age of 18 years. In fact, securing the best interest of the child is an obligation cast upon the Government of India having acceded to the Convention on the Rights of the Child (the CRC)[8].

The POCSO act defines Penetrative sexual assault and Aggravated Penetrative sexual assault and criminalizes any form of sexual intercourse before 18 years of age. The duality therefore is that having sexual intercourse with a girl child between 15 and 18 years of age, the husband of the girl child is said to have not committed rape as defined in Section 375 of the IPC but is said to have committed aggravated penetrative sexual assault in terms of Section 5(n) of the POCSO Act.[9]

It is noted that due to the anomaly between the IPC and POCSO the Criminal amendment, 2013 was enacted which inserted section 42A stating “42-A. Act not in derogation of any other law.—The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency”. But it is put forward that the courts have made a lukewarm effort to implement the above mentioned amendment and have continued to differentiate between married and unmarried woman below 18 years of age[10].

That is exactly where the importance of the above judgment comes into the fold. It juxtaposes the special laws enacted with IPC as seen by the reference made to the Juvenile Justice Act, 2015.  A child in need of care and protection is defined in Section 2(14) of the JJ Act, inter alia, as a child “who is at imminent risk of marriage before attaining the age of marriage and whose parents, family members, guardian and any other persons are likely to be responsible for solemnization of such marriage”.

Similarly, Section 3 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘the DV Act’) provides that if the husband of a girl child harms or injures or endangers the health, safety, life, limb or well being, whether mental or physical, of his wife including by causing physical abuse and sexual abuse, he would be liable to have a protection order issued against him and pay compensation to his wife. Explanation I (ii) of Section 3 defines ‘sexual abuse’ as including any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of a woman. Thus, it is evident that Indian legislations have the necessary provisions to ensure the protection sought for children under the international conventions.

THE SOLUTION TO THE CONUNDRUM

The court held on the above considerations held that “Exception 2 to Section 375 IPC should be read down to bring it within the four corners of law and make it consistent with the Constitution of India. 88. In view of the above discussion, I am clearly of the opinion that Exception 2 to Section 375 IPC in so far as it relates to a girl child below 18 years is liable to be struck down on the following grounds:– (i) it is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Article 14, 15 and 21 of the Constitution of India; (ii) it is discriminatory and violative of Article 14 of the Constitution of India and; (iii) it is inconsistent with the provisions of POCSO, which must prevail. Therefore, Exception 2 to Section 375 IPC is read down as follows: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape”. It is, however, made clear that this judgment will have prospective effect.

The judgment is directly in consonance with the need of the hour. It harmonizes the special laws which regard the age of consent to be 18 and the penal law in the country.  But does the judgment solve the ever growing problems of persistent child marriages and lack of Reporting under POCSO?   Perhaps not

As clearly laid down in Muthamma Devaya & Anr. v. Union of India & Ors [11] the advent of the menace of child marriage is surely a concern for Indian lawmakers. After making the aforesaid observations, the Karnataka High Court constituted a four Member committee, headed by Dr. Justice Shivraj V. Patil, former Judge of this Court, to expose the extent of practice of child marriage. Pursuant to the report of the Core Committee, in the State of Karnataka an amendment was made in the PCMA and Section 1(A) has been inserted after sub-section 2 Section 3, which reads as under: “(1A) Notwithstanding anything contained in sub-section (1) every child marriage solemnized on or after the date of coming into force of the Prohibition of Child Marriage (Karnataka Amendment) Act, 2016 shall be void ab initio.”

In the National Family Health Survey-4[12], 2015-201637 some startling figures are revealed. It was found that at the time of carrying out the survey in 2014, amongst women in the age group of 20-24 years, almost 26.8% women were married before they attained the age of 18 years, i.e. more than one out of 4 marriages was of a girl child. In the urban areas the percentage is 17.5% and it rises to 31.5% in the rural areas.

Section 3 of the PCMA provides that a child marriage is voidable at the option of any one of the parties to the child marriage – a child marriage is not void, but only voidable.  Although the criminalization of child marriages is present but the harmonization between PCMA, HMA, 1955, POCSO, IPC is very important so that no law can instigate the protection under any other law. The Karnataka example is appreciated and can be followed to implement a uniform age of consent and sexual orientation.

Thus, it is clear that the judgment delivered by the Supreme Court has indeed filled the gap between POCSO and IPC. But the legislation has a long way to go. The awareness programmes need a push so that children are not only made aware about their rights but also that the mandatory reporting conundrum is solved. On 22 December 2016, in an unprecedented move, a Special Court in Thane, Maharashtra issued a perjury notice to a 16 year-old minor girl in a case under the POCSO Act. The girl had allegedly been subjected to rape by her father. The victim turned hostile under cross examination. Thus, it is necessary that law needs implementation to ensure that children are able to speak freely and can impose their rights.


This Article is written by Shiv Jindal, Student, UILS, Punjab University, Chandigarh
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] National crime records bureau 2016.

[2] Criminal Misc. Application No. 8290 of 2015

[3] Criminal Miscellaneous Application No.19811 of 2013

[4] Independent thought v. Union of India W.P.(CIVIL) NO.382 of 2013

[5] Ms. Eera v. State (Govt. of NCT of Delhi) & Anr. S.L.P. (Crl.) Nos. 2640-2642

of 2016.

[6] (1996) 2 SCC 384

[7] (2009) 9 SCC 1

[8] ibid

[9] ibid

[10] Yubusbhai Usmanbhai Shaikh v. State of Gujarat, Mujamil Abdul Sattar Mansuri v. State of Gujarat

[11] Writ Petition No.11154/2006

[12] India Fact Sheet- Issued by Government of India, Ministry of Health and Family Welfare

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