Day 2 Arguments (Jayna Kothari)

Exception to Rape within Child Marriages

On September 5th 2017, the second day of the hearing, Advocate Jayna Kothari appeared for the intervenor Child Rights Trust and commenced her arguments before the Bench.

Child marriages have adverse implications on the physical, mental and sexual health of the girl child owing to the early onset of sexual activity and the complications from teenage pregnancies and abortions. Further, the practice results in intimate partner violence and sexual exploitation against child brides. The Prohibition of Child Marriage Act, 2006 (PCMA), was enacted to combat this practice.

Under the PCMA a marriage between parties where either is a minor is voidable and can be nullified at the instance of the minor party on attaining majority. However, where on one hand the PCMA gives the minor girl the opportunity to nullify the voidable marriage upto two years after attaining the age of majority, Exception 2 to S. 375 exempts  forced sexual intercourse and other sexual acts of the husband against the minor wife and grants them legal sanction on account of her being married to the man, thus hindering effective implementation of the provisions of PCMA.

Exception 2 to S. 375 classifies minor girls on the basis of their marital status for the purpose of sexual violence and thus violates of Article 14. It is also inconsistent with the legislative framework on the age of consent in various other statues like the JJ Act & POCSO. Ms. Kothari therefore proposed that the exception be read to mean that sexual intercourse by a man with his own wife, the wife not being under eighteen years of age, is not rape.

A significant development on the issue of child marriages has come by way of the Karnataka State Amendment to the PCMA in April, 2017 which declares child marriages void ab initio. It was enacted pursuant to recommendations of the Justice Shivraj Patil Committee Report on Child Marriages in Karnataka.  In effect there is no legal relationship of husband and wife between the contracting parties and the exception would not be applicable to such marriages under the Karnataka Amendment Act.

Several High Courts have repeatedly held that the PCMA being a secular law would override the provisions of personal law and in doing so have taken note of the adverse consequences of the practice of child marriage particularly in the context of the girl child. In this regard, the decision of the Delhi High Court in Association for Social Justice & Research vs. Union of India observing that “women who marry early are more likely to suffer abuse and violence, with inevitable psychological as well as physical consequences” is significant.

A distinction must be drawn between a valid, void and voidable marriage and while a voidable marriage may not be illegal, it cannot be seen as a valid marriage granting all rights that would accrue to a husband or a wife in a marriage that was contracted between two consenting adults. Therefore, in voidable marriages, where the wife is a minor, the husband cannot be permitted to claim immunity for forced sexual conduct on the basis of a marital relationship which may not subsist after the wife attains majority. In this regard, Ms. Kothari relied on the decision of the Madras High Court in  T. Sivakumar v. Inspector of Police, Thiruvallur Town Police Station, Thiruvallur District. 

An analysis and perusal of the various reports and data on record including the NFHS 4, the report by the National Commission for Protection of Child Rights, among others as well as recent studies establish a causal link between early marriages and intimate partner violence.

Further, international legal framework on the issue, in particular the CEDAW and Convention on the Rights of the Child (CRC) to which India is a signatory, imposes on member states an obligation to enact a comprehensive legal framework to eliminate discrimination against women in all matters relating to marriage and family.

On the question whether reading the Exception in a manner that criminalizes sexual violence within marriage in cases where the wife is between the ages of 15-18 would amount to creation of a new offence by the Judiciary, Ms. Kothari relied on the decision of the House of Lords in R vs. R and that of the Supreme Court in Hiral P. Harsora vs. Kusum Narottamdas Harsora to state that  the Court would not be creating a new offence but only make the provisions relating to an existing offence applicable to a class of people that earlier had immunity.

To conclude, Ms. Kothari relied on the recent decision of the Supreme Court in K.S. Puttaswamy vs. Union of India  to argue the right to privacy secures for every individual a private space free from any intrusion and grants him or her autonomy over the most intimate personal decisions. Privacy is an concomitant of dignity which is essential to the development of human personality. Exempting sexual abuse and violence suffered by minor women within marriage from criminal prosecution not only violates such a right by depriving them of the autonomy over intimate decisions but also violates the fundamental right to life and bodily integrity guaranteed by Article 21 of the Constitution.