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India has ruled that sex with an underage bride is rape

India’s Supreme Court has ruled that sex with an underage bride is rape. This strikes down a loophole whereby intercourse with a girl as young 15 was legal within a marriage.

India’s Supreme Court has ruled against sex with an underage bride, establishing that sexual intercourse within a marriage where the spouse is younger than 18 constitutes rape. According to Indian law, the minimum age for consensual sex in India is 18. However, until the ruling was made on the 11th of October – coinciding with the International Day of the Girl Child – there was an exception to this rule whereby if the couple was married, intercourse was legal with girls as young as 15.

Read more: India, ending child marriage by making young girls the agents of change

sex with an underage bride
Priyanka (name changed) was raped by a neighbour when she was 14 years old. One night he came on motorcycles with friends and threatened to kill her if she didn’t get on the bike with him. He took her to a friend’s house and raped her. For ten days the police refused to register a case against him and when they did, they held her for two days in the station until she agreed to say in the statement that she went willingly with him. Priyaka and her family say that he comes from a rich, influential family. The people in her village gossip, they say she ran away willingly with him and she did bad things. After the rape he continues to harass her, sending his friends to tell her that if he sees her he will kill her, that he will come and kidnap her sisters, that he will kill her father © Getty Images

Supreme Court rules sex with an underage bride is rape 

Reversing the exception, the Court stated that, “sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. The exception (…) creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. The artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child”.

The Court also highlighted that society’s acceptance of underage marital sex only serves as an incentive to marry off children for financial benefit. As many as 30 per cent of girls in India marry before reaching the legal age. Nearly 12 million children under the age of 10 are married, according to national census data. In this sense, it is a landmark decision for the nation, as it concerns a vast part of the population.

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Priyanka was wed to a 22-year-old man in a marriage that her family arranged for her. They were worried about her safety and Priyanka thought that she would be safer if she was married and living in a different village. Her husband doesn’t know about the rape, and the rapist has sent letters to her home threatening to tell her new family and break up the marriage. “I feel angry. There’s nothing left in me,” Priyanka says © Getty Images

What is missing 

Although the decision has been welcomed by advocates of women’s rights and child protection, many point to its shortcomings. For one thing, the ruling will be difficult to enforce, considering there are currently no mechanisms to support young girls to report abuse and families are frequently unwilling to put an end to abusive situations. Secondly, the ruling fails to address the issue of rape in marriage from a broader perspective. In India, in fact, marital rape doesn’t constitute a criminal offence.

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8-year-old Sadaf (name changed) was raped by a doctor in her village. She was walking to the market when the doctor forcefully pulled her inside his clinic and raped her. Afterwards she stumbled out onto the street and fainted. When her family found her she was profusely bleeding. She told them what happened and they went to the police but the police refused to register a case, they said that they should compromise because the doctor was offering them 2 lakh rupees (around 3,000 dollars) to drop the case. The family refused: they and their neighbours had to go to the police station ten times before the police agreed to register the case. For five days after the rape, Sadaf bled and they had to shuffle from hospital to hospital to find adequate care for her. Since the rape she has been sick and weak and is too afraid to leave the house or return to school. The family is also afraid to let her leave the house because they say the rapist comes from a rich and powerful family and could harm her or kidnap her © Getty Images

In order to be able to bring any significant change to systemic child abuse in India, one must concede that the application of the ruling has many policy limitations. Nevertheless, it is equally important to cherish this step, as it signals that the justice system is ready to undertake the heavy burden of social reform.

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