Last week, a two-man bench of the Indian Supreme Court ruled that sex with any underage girl, regardless of whether she is married or not, would be considered an act of rape.
This ruling, in a country with the highest rate of child marriage in the world according to UNICEF, is being hailed as a huge step in the right direction for the rights of women and girls in India and around the world.
This new ruling helps bring clarity to the position of the Indian government on child marriage and marital rape of underage girls. Though child marriage was banned in India in 1978, and the Protection of Children from Sexual Offences Act (POCSO) considers sex with a person under the age of 18 as rape, the reality in India is that child marriage continues to happen at an alarming rate.
This decision made by the India Supreme Court closed a loophole that allowed child marriage to continue. A 1940 law in the India Penal Code made an exception to POCSO allowing sexual relationships with a minor over the age of 15, as long as that minor was the perpetrator’s wife. The decision to repeal this law brings the Indian Penal Code up to speed with the child marriage protections that came later, as well as clearly reiterating 18 as the age of consent, doubling down on making child marriage illegal. This decision also makes a clear stance on marital rape in the case of child marriage. Marriage will not protect rapists for victims between the ages of 15 and 18.
Though cultural practice will take time to catch up to legal standards, many women’s and child’s rights groups are applauding this decision. “The judgment is a step forward in protecting girls from abuse and exploitation, irrespective of their marital status,” said Divya Srinivasan from Equality Now, which promotes the rights of women and girls.
What this decision does not do is address marital rape for women over the age of 18.
This would require a separate legal action that specifically addresses marital rape over the legal age of consent. This will be a difficult step for India to take. As recently as August, Prime Minister Narendra Modi’s conservative government has made statements against criminalizing marital rape. When activist began action to do so, an affidavit filed in the Delhi High Court by the government said, “It has to be ensured adequately that marital rape does not become a phenomenon which may destabilize the institution of marriage, apart from being an easy tool for harassing the husbands.”
This disappointing statement is not uncommon in a global society where patriarchal norms reinforce rape culture and undermine the rights of women. One in three women will experience domestic violence, often in the form of sexual violence by an intimate partner, in their lifetime. Taking legal steps to make marital rape, a form of domestic violence, illegal would not end domestic violence or violence against women in India. Over 50 countries world wide have criminalized marital rape, yet global estimates from the World Health Organization indicate that about 35% women have experienced either “physical and/or sexual intimate partner violence or non-partner sexual violence in their lifetime.”
What criminalizing marital rape would do is give women affected by violence legal recourse to address their abuse. Providing legal standing for women who want to take action against their rapist, regardless if he is a husband or not, is one step towards a culture that respects women as human beings. To that end, this ruling could provide the ground work for the next big step: the criminalization of marital rape in cases over the age of 18.