Author: Prajna Das
II Year | Madhusudan Law University, Odisha

Introduction:

A 17-year-old girl goes to the police station to file a complaint against her 20-year-old husband for sexually harassing her multiple times.

So was this rape, how could a husband rape his wife? Does he have a  right to get sexual intercourse anytime he wants? Is a wife a commodity that belongs to her husband? Is this marriage even valid? Both the husband and the wife in the above illustration are minors in the eyes of law and therefore not eligible to marry. In addition to that, the girl has two children at the age of 17.  This indicates she was married off at the age of 14 or 15 with no knowledge of the real world or any sex education.

In this article we will discuss how both child marriage and marital rape are violative of child rights and the situation in India.

What is child marriage?

It mainly occurs in rural India. Poor and uneducated parents in rural India force their teenage girls to marry older men.  The main reasons for such occurrences could be poverty, lack of education, dowry pressure, patriarchy, ancient social customs, and norms. In pre-independence India, child marriages or ‘Bal Vivah’ were very common. India has now abolished and also declared child marriage a criminal offense under the Prohibition of Child Marriage Act, 2006. UNICEF says, in India 27% of the girls are married before reaching 18 years, and 7% of the girls before the age of 15. [1]

Child marriages violate the rights of a child:

A child bride suffers immensely. She becomes a victim of sexual abuse,  domestic violence, repetitive unwanted pregnancies, ill-treatment and many other atrocities. Girls who get married before they reach  15 years of age are deprived of access to primary or secondary level education. As a result, they are unaware of menstrual hygiene, use of contraceptives, or any birth control methods. They are also not capable of taking proper care of themselves and their newborn babies.

A child groom also faces adversities. At an age where he must be playing and learning he has to give up education and take responsibility for a wife. He has to think of earning a livelihood. A boy of that age would usually get a low-income job; it eventually becomes his lifestyle.

Child marriage is an absolute violation of child rights as it is a harmful, evil practice. It prevents innocent children from living their lives to the fullest. Child marriage leads to ill-treatment, slavery and exploitation of a child at a tender age. It takes away their right to live with dignity. Child rights include access to a compulsory primary education. Lack of education implies a lack of awareness of basic rights. Child marriage violates the following child rights and more:

• Right to protection from all sorts of violence
• Right to protection from physical and sexual abuse
• Right to freedom of expression
• Right to education
• Right to relax and play

Child marriage and marital rape:

The child brides are mostly between 12-17 years of age. We cannot expect them to be aware of their responsibilities as a wife; they have very little knowledge about cohabitation. This leads to early pregnancy mainly at the age of 15-16. The girl who is a minor has no idea if she has to submit to her husband for intercourse or not. She does not know whether her consent matters or not. She is also unaware of her rights. Unprotected and regular sexual activities can sometimes also lead to STDs.

The young and immature couple have no knowledge about contraceptives or birth control methods to avoid early pregnancy. Even if it was from the first day, or after a few days or years when the girl starts to resist or deny consent to intercourse, her voice is silenced in a male-dominated family and society. Any kind of forceful sex or sexual intercourse without consent must amount to rape. Forcing a child bride to have physical relations without her consent is a violation of basic fundamental rights. It becomes an act of marital rape, which is still not a crime in India.

According to Sec- 375 of the Indian Penal Code[2], it is a crime to have sexual intercourse with a minor wife if she is below the age of 15 years. In India, non-consensual forceful sex is a crime only if the perpetrator is not the husband. In many parts of rural India, people still see women as an asset or property and their consent does not matter. Marital rape takes away a woman’s dignity, and her right to express her opinions and it is a clear violation of her right to privacy.

Most of the women of rural India are victims of child marriage. They then continue to suffer by being subject to marital rape, and mental and physical abuse. A man’s reply to a woman’s resistance is domestic violence or physical violence.

Methods to tackle child marriage in India:

According to IPC, marital rape is a form of domestic violence but attracts a smaller term of imprisonment.  Any woman who is a victim of such crimes has a remedy. She can go to court and seek a  judicial separation. The only thing the victim should never do in such a situation is stay silent, she should be vocal. Not only child brides but all women facing such evils need legal protection against marital rape irrespective of their age.

• Many NGOs are working on eradicating the evil practice of child marriage and also spreading awareness about how to reach out to the police or court in case of domestic violence. They are also providing easy access to legal representatives and other redressal mechanisms.
• The most important of all is education. Educating the parents, the accused, the victims, and all members of the community or society will help eradicate such social evils.
• Also, many women do not voice their suffering because they are dependent on their husbands for their expenses. Most of these child brides are housewives, and divorce will deprive them of their financial security. These women must be encouraged to become independent and be provided with work or access to self-help groups, or NGOs that promote their welfare.

Conclusion :

No woman is a man’s property. Poverty, patriarchy, and some age-old traditions push parents to get their teenage children married off. Currently, the situation in India is improving as the government is taking important initiatives to establish more schools in every district and promote the importance of education.  The Constitution mandates free and compulsory primary education for all children within the age group 6-14 years.

Child marriage and marital rape are clear violations of a child’s rights. Child marriage is a criminal act and the criminals here are the own parents and the husband of a child bride. The abuse by one’s own family and deprivation of rights creates a long-term impact on the mental health of a child bride.

^[1]UNICEF, Child marriage https://www.unicef.org/rosa/what-we-do/child-protection/child-marriage

^[2] Indian Penal Code 1860,§ 375, No. 45 of 1860 (India)

Editor: Ananya Manjunath