Child Marital Rape: Sex With Underage Wives is Rape, Supreme Court Rules

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Such cases are also flooding the juvenile justice system where a boy below 18 years is invariably charged under the POCSO Act for eloping with his girlfriend and can be potentially be tried as an adult if he is above 16 years and is alleged to have committed penetrative or aggravated penetrative sexual assault.

This seemingly posed a contradiction with several other laws in India meant to protect girls under 18. "The young girls are powerless to refuse sex and lack the resources or legal and social support to leave an abusive marriage".

According to Claudia Garcia Moreno, a leading expert in violence against women, "Child marriage marks an abrupt and often violent introduction to sexual relations".

Holding this distinction was also "contrary to the philosophy behind some statutes, the bodily integrity of the girl child and her reproductive choice", he said it also "turns a blind eye to trafficking of the girl child and surely each one of us must discourage trafficking which is such a terrible social evil".

The SC has now criminalised sex between a man and his minor wife.

But the reality in India didn't match the laws.

As a move to strengthen the fight against child marriage and help stricter enforcement of the Prohibition of Child Marriage Act, 2006, the judgment can not be faulted. And the contradiction between the age set in the 1940 law and subsequent laws was not addressed.

An additional difficulty is that experts say the new law may be hard to enforce.

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The Supreme Court in India has now ruled that men who have sex with their child bride are guilty of rape.

The landmark order comes at a time when the apex court is already hearing petitions calling for marital rape to be declared crime and a debate over the age of consent. Isn't the court being unfair and performing a disservice to several Indian women who could be facing harassment by their husbands but can do nothing about it because they are above a certain age?

But advocates for girls and women are hailing the law as a step in the right direction. The Supreme Court bench expressed concern over thousands of minor girls being married at mass wedding ceremonies on Akshaya Tritiya and observed that child marriages could not continue just because the practice was assumed to be legal and has been going on for ages. The plea challenged the exception to the rape law that permits intercourse/sexual act by a man with his wife, not below 15 years.

Special courts did not go into aspects such as the age difference between the parties, validity of the marriage, or whether the victim was groomed by the accused. Age does matter, says Rashi Vidyasagar, a criminologist in Bangalore.

Vidyasagar asks semi-facetiously, "Do we automatically put their husbands in jail?"

Indian law says a woman must be at least 18 to marry and consent to sex, but there are exceptions.

The court, however, made it clear that it was not saying anything on the larger issue of marital rape even though the verdict would have a prospective affect on that.

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