It is rape

THE Supreme Court on Wednesday plugged a loophole in law that so far allowed a married man to have sex with a girl even if she is under 18, the age of consent. While the criminal code protects a child by prohibiting anyone from having sex with anyone below 18 years, the law provided an exception for married couples. The exception says that sexual intercourse with a minor wife above the age of 15 would not qualify as rape. This meant that while you could be charged with rape for having consensual intercourse with a girl below 18, non-consensual sex with a minor bride would be legal. By striking off the clause in response to a public interest lawsuit, the court has aligned the millions of married minors with their unmarried minor peers regarding sexual assault laws. Perhaps, now we will have fewer underage girls being married off to much older filthy rich men.

The new legal regime is a huge step forward for the child brides — UNICEF-2016 report says that 47 per cent of girls are married off before they are 18 in India — considering that successive governments have fought shy of invalidating the regressive rule, all in the name of tradition and socio-economic realities. But while criminalising rape empowers girls to have sexual autonomy and a say over their bodies, for the law to be effective, the government — and society — need to first strictly prohibit child marriages. Rather than cooking and cleaning for their husbands and becoming mothers at a young age and suffering from consequential health issues, girls must be encouraged to go to school. 

The Supreme Court’s ruling reflects a shift in social mores. The Indian society is no longer happy being chained to medieval rites and traditions. And, it is incumbent upon the judiciary to nudge the society towards progressive practices and laws. Earlier in August, the Supreme Court had boldly protected the rights of Muslims women by declaring instant triple talaq unconstitutional. Next on the progressive agenda should be protection and autonomy to married women above 18, notwithstanding the government’s specious plea against criminalising marital rape in the name of protecting the institution of marriage.