SC says girl child can't be treated as commodity, calls separate marriage laws for Hindus and Muslims 'mockery'

A married girl below 18 years of age "cannot be treated as a commodity having no say over her body" or the right to deny sex to her husband, the Supreme Court observed today.

The top court said there is a fundamental right to a girl child to "live a life with dignity" and expressed concern over the detrimental effects of early marriage, not only in terms of her physical and mental health, but also regarding nutrition, education, employability and general well-being.

"The discussion on the bodily integrity of a girl child and the reproductive choices available to her is important only to highlight that she cannot be treated as a commodity having no say over her body or someone who has no right to deny sexual intercourse to her husband.

"The human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance," a bench of Justices M B Lokur and Deepak Gupta said.

It said "we must not and cannot forget the existence of Article 21 of the Constitution which gives a fundamental right to a girl child to live a life of dignity.

"The documentary material placed before us clearly suggests that an early marriage takes away the self-esteem and confidence of a girl child and subjects her, in a sense, to sexual abuse. Under no circumstances can it be said that such a girl child lives a life of dignity."

The top court also said there could be a detrimental impact of early marriage on the child born out of it "who may be malnourished and may be required to live in an impoverished state due to a variety of factors."

"Should this traditional practice still continue? We do not think so and the sooner it is given up, it would be in the best interest of the girl child and for society as a whole," Justice Lokur said in his 70-page verdict.

In his separate but concurring judgement, Justice Gupta condemned child marriage and said it puts the girl's health in "jeopardy".

"When a girl is compelled to marry before she attains the age of 18 years, her health is put in serious jeopardy," the judge said, while referring to various reports on the effects of child marriages across India.

"The girl child is also twice as more likely to die in child birth than a grown up woman. The least that one would expect in such a situation, is that the State would not take the defence of tradition and sanctity of marriage in respect of girl child, which would be totally violative of Articles 14, 15 and 21 of the Constitution," the judge said

Following are key highlights of the Supreme Court judgement that held sexual intercourse with a girl below 18 years of age, even by the husband, would amount to rape:

* Amended the wordings of 'Exception 2 of Section 375 (definition rape) of the IPC, as: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape." * Exception 2 to Section 375 IPC was "arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Article 14, 15 and 21 of the Constitution." * Court makes it clear that it did not deal with issue of marital rape (sexual intercourse with wife without her consent) of adult women".

* Justices M B Lokur and Deepak Gupta were unanimous that there should be harmonious construction of all pro-child laws * SC refers to observation of European Commission of Human Rights that "A rapist remains a rapist regardless of his relationship with the victim"

* Court hits out at the Centre for not criminalising sexual intercourse with a girl under 18 years of age even if the exploiter was her husband.

* Welfare schemes and "catchy slogans" are excellent for awareness campaigns but they must be backed by focused implementation programmes.

* Hindu and Muslim Marriage laws not in consonance with Prohibition of Child Marriage Act.

* A married girl below 18 years of age "cannot be treated as a commodity.

* There is a fundamental right to a girl child to live with dignity.

* Court takes note of two contrary repoerts of Law Commission on whether to criminalise sexual activity between a man and his minor wife. 

SC touches upon separate marriage laws for Hindus and Muslims

Highlighting the inconsistencies in various laws, the Supreme Court today also touched upon separate marriage laws for Hindus and Muslims and said the provisions make a "mockery" of the Prohibition of Child Marriage Act (PCMA).
 

Under the Dissolution of Muslim Marriages Act, 1939, if a minor girl under the age of 15 years is married under Muslim law, she can obtain a decree of dissolution of marriage before she attains the age of 18 years provided that the marriage has not been consummated.

"This provision deals with girls below the age of 15 years who are got married. Such a girl is required to repudiate her marriage before she attains majority and she can only repudiate the marriage, if the marriage has not been consummated. This virtually makes mockery of the PCMA,"a bench of Justices M B Lokur and Deepak Gupta said.

Elaborating on the anomaly, the bench said even in a marriage which is void under PCMA, the girl will have to obtain a decree for dissolution of her marriage, that too before she attains the age of majority and only if the marriage has not been consummated.

The bench dealt with another anomalous situation and said that if the husband has forcible sex with such a girl, the marriage is consummated and the girl child is deprived of her right to get the marriage annulled.

While dealing with provisions of the Hindu Marriage Act, 1955, the bench said, a Hindu girl can file a petition for divorce on the ground that her marriage, whether consummated or not, was solemnised before she attained the age of 15 years and she has refused to accept her marriage after attaining the age of 15 years but before attaining the age of 18 years.

"This is also not in consonance with the provisions of PCMA, according to which marriage of a child bride below the age of 15 years is void and there is no question of seeking a divorce. A void marriage is no marriage," it said.

The bench also highlighted another anomaly in the Hindu Marriage Act saying that a child bride, who is above 15 years under PCMA, can apply for annulment of marriage up to the age of 20 years.

"...Under Section 13(2)(iv) of the Hindu Marriage Act, a child bride under the age of 15 years must repudiate the marriage after attaining the age of 15 years but before she attains the age of 18 years, i.e. even before she attains majority. The question that remains unanswered is who will represent or help this child, who has been forced to marry, to approach the Courts," the bench said.

The top court said it is obvious that while making amendments to various laws, some laws are "forgotten" and consequential amendments are not made in those laws.

It said that after the PCMA was enacted both the Hindu Marriage Act, 1955 and the Dissolution of Muslim Marriages and Divorce Act, 1939 should also have been suitably amended, but this has not been done.
"In my opinion, the PCMA is a secular Act applicable to all. It being a special Act dealing with children, the provisions of this Act will prevail over the provisions of both the Hindu Marriage Act and the Muslim Marriages and Divorce Act, in so far as children are concerned," Justice Gupta said