India’s top court yesterday ruled that a man is committing rape if he engages in sexual intercourse with his wife who is aged between 15 and 18, a landmark decision that will affect millions of child brides.
The legal age of consent is 18 years. The law regards even consensual sex with a woman under 16 as rape, but an exception had been made for intercourse between a man and his wife who is between 15 and 18.
Marital rape is not a crime in India, where the government has said criminalizing marital rape could destabalize marriages and make men vulnerable to harassment by their wives.
The Supreme Court ruled the age of consent was 18 for “all purposes” after hearing a petition by Independent Thought, a non-profit group that sought to criminalize sex with underaged wives.
“Sexual intercourse by a married man with their minor wife below 18 years is rape,” the court said in its judgment, which was welcomed by women’s rights campaigners.
“I am very happy with the Supreme Court judgment,” Vikram Srivastava, a lawyer for Independent Thought, said.
“The judgment gives a boost to the national campaign of ‘Beti bachao and beti padhao,’” he added, using a Hindi phrase meaning “Save the girl child and educate the girl child.”
The additional solicitor general, P.S. Narasimha, who represented the government, declined to comment.
Yesterday’s verdict would not be applied retrospectively, however, said the court, which based its conclusions on India’s Child Marriage Prohibition Act.
Though illegal, child marriage is deeply rooted in India. Factors such as poverty, weak law enforcement, patriarchal social norms and concerns about family honor are often blamed.
Marriages in India are considered to involve a child if the woman is below 18 or the man younger than 21. Men both above and below the legal age may marry child brides.
India’s 2011 census showed child marriage had declined marginally from a decade earlier but more than 5 million girls were still married before the legal age of 18.
More than a quarter of Indian women between 20 and 24 said they were married before 18, and a fifth of men between 25 and 29 said they married below the legal age, the National Commission for the Protection of Child Rights and the charity Young Lives said in a recent report analysing the census data.
The number of underage brides has fallen 0.3 percent in rural areas since 2001, but in urban areas it rose 0.7 percent, the report said.