India: Landmark Ruling Criminalizes Sex With A ‘Child Bride’ But Enforcement Won’t Be Easy

India’s Supreme Court passed a landmark ruling against sexual relations with an underage bride, claiming any relations would constitute as rape. The court ruled that if a man engages in sexual intercourse, with or without consent, with his wife who is aged between 15 and 18, he would be committing rape. The Supreme Court ruled the age of consent was 18 for “all purposes.” “Sexual intercourse by a married man with their minor wife below 18 years is rape,” the court said in its judgment.

The decision is expected to affect millions of child brides. Anyone convicted can face up to 10 years of imprisonment or even a life term. The ruling by a two-judge bench of India’s Supreme Court was in response to a public interest lawsuit that argued that exception to sexual assault laws for child marriages encouraged the outdated practice.

India’s age of consent is 18 and child marriage is illegal. While child marriage was criminalized in 1978, the practice continues in many parts of India. According to the Guardian, before the ruling, a 17-year-old boy who had consensual sexual relations with another girl his age could be charged with statutory rape, while a 50-year-old man who married a 15-year-old girl and had sexual relation was committing no crime. Because of the age of consent, Indian law regards consensual sex with a woman under 16 as rape. However, an exception was made between a man and his wife who is between 15 and 18.

The Guardian also added successive Indian governments have argued the tradition could only be addressed through development initiatives as the social and economic conditions in India made child marriage an unfortunate reality. According to Reuters, the legal loophole was also exploited to traffic minor girls into sexual slavery, both within and outside India. India has the highest number of child brides in the world at more than 26 million, according to the UN’s children agency, UNICEF.

The ruling was seen as a laudable effort by the Supreme Court by human rights, child rights, and women rights advocates. The ruling date also coincided with International Day of the Girl Child on October 11. “The verdict is a vindication of the demand being raised by child rights activists. The challenge of its effective implementation remains. We hope it revamps strategies to prevent and prohibit child marriage,” Maya John of the Center for Struggling Women (CSW), a women’s rights organization, told Deutsche Welle.

While clearly a step in the right direction, enforcing the order will be an uphill task. According to the BBC, the “judgement said that girls under 18 would be able to charge their husbands with rape, as long as they complained within one year of being forced to have sexual relations.”  However, some claim this is not a plausible option for many girls forced into the practice. “A minor girl who is already married, almost always with the consent of her parents, will not usually have the courage to go to the police or court and file a case against her husband,” said the BBC’s Geeta Pandey. “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,” added lawyer Sudha Ramalingam.

Despite the practice of child marriage being criminalized decades ago, social acceptance of this tradition makes enforcing the court’s verdict a serious challenge. Many have also criticized the rulings focus on men and its failure to address the role played by parents on both sides. According to Reuters, “Enakshi Ganguly, founder of HAQ, a rights group focused on child welfare, believes the law had the potential of putting a whole lot of youngsters in the criminal justice system.”

Given the large number of child marriages taking place, socio-economic conditions such as poverty, a lack of law enforcement, and patriarchal beliefs all contribute to the outdated practice. Due to the prevalence of female child brides, gender discrimination is inherent in child marriage. The practice is also a violation of both child and human rights, as it prevents women’s development and contributes to a cycle of underdevelopment, early motherhood, lack of education, poor health and violence. Thus, it will be interesting to see whether the ruling is able to bring about a social and legal change in India.

Nishtha Sharma