India’s top court has ruled that sex with a child is always rape, quashing a clause that allowed men to have sex with underage girls if they were married to them.
The Supreme Court’s landmark decision on Wednesday closed a legal loophole that has historically allowed perpetrators of rape to escape punishment.
While the age of consent in India is 18, there was a clause in India’s rape laws that lowered the age of consent to 15 if the girl was married.
But the court has now ruled that the clause is “discriminatory, capricious, and arbitrary”, and “violates the bodily integrity of the girl child”.
“This is a landmark judgement that corrects a historical wrong against girls,” Vikram Srivastava, the founder of campaign group Independent Thought, told the BBC. “How could marriage be used as a criteria to discriminate against girls?”
Girls under 18 will now be able to report their husbands for rape, as long as they lodge a complaint within a year of it happening.
“The judgement is a step forward in protecting girls from abuse and exploitation, irrespective of their marital status,” Divya Srinivasan, from women’s rights organisation Equality Now, told Global Citizen.
“This positive decision by the Supreme Court will hopefully encourage the Indian government to protect all women by removing the marital rape exemption in all cases,” she said.
Commentators say the ruling will be difficult to enforce in the country, however, due to the high rates of child marriage.
India is ranked 10th in the world for child marriage, with an estimated 47% of girls married by the time they turn 18, according to the campaigning organisation Girls Not Brides.
Girls are often seen as an economic burden, particularly in poor, rural areas, and many parents marry off their children in the hope of improving their financial security.
There is also a shame associated with pre-marital sex that can lead to girls’ parents forcing them to marry their rapists, according to news agency AFP.
Child marriage is a serious barrier for the girls involved, often leading to them dropping out of school to focus on their domestic responsibilities, or suffering health problems from giving birth at a young age.
(Caption: A young actress plays the role of Giorgia, 10, forced to marry Paolo, 47, during a happening organised by Amnesty International to denounce child marriage, on October 27, 2016 in Rome.)
India’s rape laws have, prior to this ruling, specifically excluded married couples. Men can currently still have non-consensual sex with their wives without it being classed as rape.
While Wednesday’s ruling represents progress, there are still steps to be taken in criminalising marital rape.
A challenge to the laws on marital rape is currently going through the Indian courts, reported AFP, but the government has said it opposes criminalising marital rape as it would damage the institution of marriage.
The government has said that criminalising marital rape could “destabilise” marriages and could be used by wives as “an easy tool for harassing the husbands”.
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