COMMENTARY

that lowering the age of consent will Controversy over Age of Consent encourage child marriage, totally dis- regarding the sociological trend that the age of marriage for females increases Flavia Agnes only when the standard of living is raised, and when public spaces are safe In the recent debate over hile the debate around the for them to pursue their education. In amendments to the law on rape, amendment to the rape law rural in January 2013, a the age of consent for women Wraised a wide range of con- young girl on her way back from school cerns, an issue which became the focus on a bicycle was gang-raped and thrown attracted attention, for almost all of controversy at the last stage was the into a well. She was saved by passers-by the wrong reasons. What was age of consent. The media fanned the who noticed her struggling for life. overlooked was that the law has controversy by framing it as “whether Thereafter, the entire village has not helped in interventions at the the age should be retained at 18 or redu- stopped sending girls to schools outside ced to 16”, which was a wrong way of the village.1 These girls will soon be community level to curb child putting it. The issue split activist groups, married off, despite a law in place that marriages arranged by natal government ministries and parliamen- stipulates the minimum age for mar- families. There is a need for tarians down the middle. Strangely, it riage is 18. According to news reports community-level sensitisation, pitted women’s groups against child perturbed over recurrent instances of rights groups, the Ministry of Women sexual harassment of teenage girls, the greater security for girls in public and Child Development against the Min- panchayats of six villages in Haryana spaces, and better resources for istry of Law, and the ruling party against decided not to send their girls to school. education of girls in poverty- the opposition. Cloaked in confusion, Around 400 girls were affected by stricken villages and urban slums. the debate lacked clarity. this decision. One can condemn these Paradoxically, the Bharatiya Janata decisions, but this will not help change The campaign for stringent laws Party (BJP) expressed its opposition in social reality at the ground level.2 alone has merely strengthened terms of “preserving” our culture and Later reports said that parents had patriarchal power and weakened tradition. Najma Heptulla, the BJP spokes- allowed the girls to attend school under the negotiating power of young person, speaking on a news channel, ex- police protection. posed her ignorance when she declared, Child rights groups concerned with girls contracting marriages “ is not ready for it”, thereby implying the global traffi cking of minors opposed of choice. that a low age of consent is a “western the provision of 16 years for consensual tradition”, oblivious of the reality that a sex on the ground that it would encour- low age of consent and child marriage age child traffi ckers. But we cannot col- have been the bane of social reformers in lapse two different concerns – the issue India since the 19th century. of traffi cking of minors and consensual No one seemed to remember that the sexual activity between young adults. minimum age of consent for sexual inter- The new bill has stringent provisions on course was raised from 16 to 18 years traffi cking and there is no intention on only in November 2012, when the Pre- the part of the government to skirt this vention of Sexual Offences Act came issue. So this argument lacks validity. into force. However, there was no clarity This position also has the sanction of the even then. When this bill was fi rst moral brigade that views sex and mar- introduced in the Lok Sabha, the age riage as synonymous. of consent was stated to be 16, but The two main concerns for those re- due to protests from certain campaign sisting the increase in the age of consent groups, it was changed to 18 at the time are increasing parental control over of introducing it in the Rajya Sabha. young adolescents and criminalising a There were hardly any cases registered normal sexual activity. Perhaps a brief under it when the issue of the rape discussion of Monica’s (name changed) Flavia Agnes (fl [email protected]) is a law amendment hit the headlines in case may help to shed some light. women’s rights lawyer and director of Majlis, January 2013. Monica approached a public hospital which runs a rape victim support programme During the debate, the minister for with pregnancy-related problems.3 When in . women and child development argued her age was recorded as 14, despite her

10 july 20, 2013 vol xlviii no 29 EPW Economic & Political Weekly COMMENTARY protests the police was called and her two years, either way. And in a dispute challenged the authority of the colonial mother was compelled to sign the fi rst over age between the parents and the state to interfere in local customs, prac- information report (FIR) under the threat child, the law tends to lean in favour of tices and religious beliefs. But the age of that treatment would otherwise not be the parents. consent was fi xed at 10 in the Indian provided to her daughter. The boyfriend, A discussion on “elopement” marriages Penal Code of 1860. Later, following the a 20-year old Muslim, who worked as a brings to the fore the ways in which death of a young bride, Phulmonee, due garage mechanic, was arrested. Monica multiple social subordinations – caste, to violent sexual intercourse by her was distraught. Several bail applica- region, religion – intersect with patri- husband, the age was raised to 12 in tions made on his behalf were dismissed archy to contain the sexual choices of 1890 after a great deal of controversy. despite Monica herself pleading for his defi ant young women within established The British courts had ruled that since release. This incident occurred before social mores. The situation becomes pre- the girl was above the age of consent, the Protection of Children from Sexual carious when an upper-caste girl elopes her death could not be viewed as murder Offences Act, 2012, with its provision with a lower-caste boy, or when a Hindu as the husband had a legal right to have of mandatory reporting of all sexual girl falls in love with a Muslim boy, sex with her (Sarkar 1993). offences came into force. transgressing the boundaries of Hindu During the early 20th century, when A month later, Monica delivered a upper-caste dictates on “purity”. In a women’s organisations entered the daughter. Her only concern was to meet strictly stratifi ed society, ridden with political arena, the focus shifted to the father of her child. Every time he prejudices against the lower castes and women’s health, protection from early was brought to court, she went along minorities, a young couple that dares to pregnancies, and concern over women’s with her infant all dressed in a hijab. cross boundaries is severely punished. education. The age for marriage of girls Her fault was not realising in time At times, the price for choosing a part- under the Child Marriage Restraint Act, that she was pregnant so she could ner is public humiliation or gruesome 1929 (CMRA) was raised from 12 to 14, undergo an abortion, and her mother murder. The notion of women as the sex- when biologically the body of the female truthfully admitting that she was not ual property of their communities is would be more receptive to sexual inter- married and that they were too poor deeply ingrained. course and pregnancy. In 1949, the age to afford a private maternity home. of consent under the rape law was raised Obviously, she turned hostile during the Child Marriage Discourse to 15 years. This became the basis while trial, but it is anyone’s guess whether The social movement against child mar- enacting the Hindu Marriage Act in 1955, the youth, once acquitted, will marry riage and the demand for state interven- which laid down a minimum age of 15 her after the ordeal of incarceration tion to curb this malaise was fi rst arti- for girls and 18 for boys. But the enact- for several months, for which she was culated in the 19th century and the ment did not render under-age marriages not even responsible. In Monica’s case, engagement with this issue continues in void. This was due to the ideology of the blame lay squarely on state agencies. the 21st century (Agnes 2011: 66-78). Hindu marriages being sacramental Monica is lucky that she has a supportive Despite this being one of the earliest (despite the codifi cation) and due to the mother but other young girls are not legal campaigns, there are hardly any in- grave social implications such a move so lucky. cisive analyses on why legal reform has would have on children born of such failed to address the problem. While unions. In this context, the CMRA came Elopement and Rape Cases child marriage continues to be a prob- to be viewed more as rhetoric or an There are several instances where the lem rooted within socio-economic struc- aspiration than a moral code or a legal parents fi le cases of rape against the tures, a solution to it is sought within the mandate. Socially sanctioned community boys with whom their teenage daughters domain of the law. norms and customs prevailed over the have eloped. Anyone who has even cur- The contemporary discourse needs to legal dictate. sorily examined lower court judgments be located within continuous structural So, despite the prolonged and highly cannot fail to notice the sizeable number shifts in the economic, cultural and visible campaign before the enactment, of cases termed “statutory rape” or “tech- social frameworks. The 19th century the Act was a non-starter, with scholars nical rape”. These are cases where the reformers raised this issue within the in the late 1960s commenting that there girl elopes with her boyfriend and her newly introduced colonial legal order, had hardly been a hundred-odd prosecu- parents fi le a case of rape to exert which was designed to usher in moder- tions under it in 40 years, while millions pressure on her to return, only to get her nity and state control. It posed a chal- of child marriages took place in the married to a boy of their choice against lenge to brahminical patriarchy, within country. It was also noted that where her wishes. This tactic could be used which a high premium was placed on parties had been prosecuted, the moti- only if the girl was around 16 years of the virginity of child brides. The demand vations came from family feuds and age, but now it can be used even in cases was to fi x a statutory age of 10 years, factional fi ghts rather than from a dili- where the girl is over 18, since proof of below which intercourse was prohibited, gent application of the legal provision age is a contentious issue in litigation both in prostitution and in marriage. by the state (Sampath 1969). Thus even and ossifi cation tests have a margin of This was opposed by revivalists who the few prosecutions under the Act

Economic & Political Weekly EPW july 20, 2013 vol xlviii no 29 11 COMMENTARY were confi ned within patriarchal para- child marriage of young girls” becomes allowed to accompany her husband and digms and community controls over problematic when we examine elope- cohabit with him. Or else the father’s the female body, rather than acting as a ment cases (Sagade 2005). As against word regarding her age will be accepted safeguard against them. Several social the socio-economic constraints of child and she will be sent back to his custody, factors such as urbanisation increased marriage due to poverty, these cases and criminal charges will be pressed opportunities for education of girls, a concern marriages of choice by young against the boy. In rare cases where girls loosening of the grip of conservative girls. Here the legal provision becomes a vehemently refuse to return to the cus- religious leaderships over communities, weapon to control the expression of tody of their fathers, they are sent and westernisation among the urban sexuality, and curb voluntary marriages, to state-run shelter homes. These girls middle class have contributed to a and is used to augment patriarchal are not automatically released on attain- gradual increase in the mean age of parental power. Even though the criminal ing majority. The husbands concerned marriage. In the 1970s, the minimum provisions of kidnapping and statutory would have to initiate legal proceedings age for marriage was raised to 18 for rape appear to be protecting the minor for their release. girls (and 21 for boys) as per the recom- girl, these provisions are concerned mendations of the Committee on the primarily with securing the rights of the Judicial Responses Status of Women. parent or guardian over the minor girl Several judges have commented that against her lover or husband. A young many of the habeas corpus petitions fi led Contemporary Concerns couple who exercises the choice gets for production of a girl in court are really While child marriages still prevail in trapped in family feuds, or caste and cases to do with elopement. This is a India, the concern raised by the 19th community hostilities. There are no ex- serious concern for the courts as the century reformist movement is no longer ceptions in the laws on abduction and judgments discussed below indicate. valid. Rather than dictates of brahmini- kidnapping that allow a minor to opt In Kokkula Suresh vs State of Andhra cal patriarchy, the contemporary con- out of guardianship or to leave her Pradesh, the Andhra Pradesh High cern over child marriage needs to be parental home on grounds of domestic Court affi rmed that the marriage of a located within socio-economic factors abuse and neglect (Baxi 2009). The use minor girl is not a nullity.4 The court such as extreme poverty among the (and abuse) of police power at the further held that the husband is the urban and rural poor, lack of access instance of parents in marriages of natural guardian of a married minor’s to education for girls, and fear of rape choice is in direct opposition to women’s person and property and he is entitled and sexual abuse. Much more than the autonomy, agency and free will. to her custody, thus restraining the elite and middle classes, it is the back- In a society ridden with prejudices father from claiming legal custody of ward castes, the dalits and Muslims against the lower castes and communal his daughter. who are burdened with these concerns. confl icts, a young couple who dares to In Ashok Kumar vs State, the Punjab Ironically, these communities were not disobey community dictates is severely and Haryana High Court commented the focus of attention at the time the punished. At times, the price for choos- that couples marrying out of love are debate was initiated. Among many ing a partner is death or public humilia- chased by the police and relatives, lower castes, adult marriages of women tion (Chowdhry 2004; Welchman and accompanied by musclemen.5 Often cases were the norm. Hossain 2005). The notion that women of rape and abduction are registered Though there has been a consistent are the sexual property of their commu- against the boy. At times, the couple demand from urban, middle-class legal nities is deeply internalised, leading to faces the threat of being killed and such scholars and social activists to declare violence not merely by the girls’ families killings are termed “honour killings”. child marriages void, there is a legisla- but also the community. Often the state is a mute spectator. tive reluctance to give in to this even There are several instances where In Payal Sharma alias Kamla Sharma after the Prohibition of Child Marriage the provision of minority is used against vs Superintendent, Nari Niketan, Agra, Act, 2006. This has been so in view of the the girl and her lover on the ground the Allahabad High Court rejected the plurality of cultures and socio-economic that she is a minor and lacks agency father’s contention that the girl was a backgrounds in our population. Some to consent. At times, girls who have minor and instead accepted her conten- rural-based social activists have high- attained majority are falsely projected tion that she was a major.6 Further, lighted the class and caste biases of the as minors who are devoid of the legal the court declared that as a major she contemporary campaign against child authority to give their consent to marriage had a right to go anywhere and live marriage in the context of Rajasthan or sexual intercourse. Despite being with anyone. “In our opinion a man and (Singh et al 1994: 1377-79). aware that it is a marriage of choice and a woman, even without getting married voluntary elopement, the police collude can live together, if they wish. This Agency and Individual Freedoms with the fathers to protect patriarchal can be regarded as immoral by society The argument of some scholars that interests and community honour. Only but it is not illegal. There is a difference “the institution of patriarchy operates if a girl is able to provide clear and between law and morality”, the court in the name of culture for justifying unequivocal proof of her majority is she commented. Since the girl had stated

12 july 20, 2013 vol xlviii no 29 EPW Economic & Political Weekly COMMENTARY that her life was in danger, the court judges, with a concern for social justice, dictates of patriarchy need articulation also ordered police protection to ensure have resolved the issue by resorting to and support. It is within this complex her security. the basic principles of human rights, and tapestry that the claims of feminist juris- In Jiten Bouri vs State of West Bengal, saved minor girls from the wrath of their prudence must essentially lie. the Calcutta High Court, while permit- parents and from state-run “protective ting a minor girl to join her husband, homes”. The only way they could do so Notes declared as follows,7 was by holding these marriages to be 1 This was narrated by a senior offi cer of the valid and by allowing the girls to cohabit Karnataka Police Training Academy at a work- Although the girl has not attained majority shop held at the Lal Bahadhur Shastri National yet she has reached age of discretion to with their partners of choice. Academy of Administration, Mussoorie, in understand her own welfare which is a par- March 2013 to the author. amount consideration for grant of her cus- Feminist Jurisprudence 2 Newsline, Mumbai, 12 May 2013, “6 Haryana Villages Not to Send Girls to School to Avoid tody. She may not have attained marriagea- and Social Reality Harassment”. ble age as per the provisions of the Hindu While pondering over these judgments, 3 A Majlis team of social workers and lawyers Marriage Act but marriage in contravention guided her through the legal process as part of of age can neither be void nor voidable… one needs to address a complex legal Rahat, a survivor support programme. The girl has insisted that she wants to join question – since the girls were minors, 4 I (2009) DMC 646 AP. her husband and does not wish to return to were they juridical persons invested 5 I (2009) DMC 120 P&H. her father’s place. 6 AIR 2001 All 254. with the power to exercise a free choice, 7 II (2003) DMC 774. In Vivek Kumar @ Sanju and Anjali @ and would the consent given by the girls 8 Crl M C No 3073-74/2006, decided on 23 Febru- Afsana vs The State, a case concerning to the marriage be deemed legally valid? ary 2007. the elopement of a Muslim girl with Examining these judgments through References a Hindu boy, the Delhi High Court the prism of women’s rights, could these 8 Agnes, Flavia (2011): Family Law Vol II: Marriage, commented, judicial interventions in aid of minor Divorce, and Matrimonial Litigation (New Delhi: There is no law which prohibits a girl under girls be termed regressive and the ). 18 years from falling in love...Neither fall- demand to declare these marriages null Baxi, P (2009): Till Honour Does Us Apart: Legislat- ing Women’s Right to Marry (New Delhi: Centre ing in love with somebody is an offence un- and void be termed progressive? Could for Law and Governance, Jawaharlal Nehru der IPC or any other penal law. Desiring to the curbing of the freedom of these University). marry her love is also not an offence.... minor girls to express their sexual choices Chowdhry, P (2004): “Private Lives, State Interven- However, this (to wait to marry till she is a tion: Cases of Runaway Marriage in Rural major) is possible only when the house of by their natal families, with the aid of the North India”, Modern Asian Studies, Vol 38, No 1, pp 55-84. her parents where she is living has congen- mighty power of the state, in a sexually Sagade, J (2005): Child Marriage in India (New ial atmosphere and she is allowed to live in repressive society, be termed a progres- Delhi: Oxford University Press). peace in that house and wait for attaining sive intervention? Sampath, B N (1969): “Marriageable Age, Consent and Soundness of Mind in Indian Matrimonial age of majority…When the daughter confi ded It is not my aim here to encourage in her father that she was in love and wanted Law: A Plea for Rationalisation”, Benares Law Journal, Vol 5. to marry her lover, the response of the marriages of minors. The point one is trying to advance is simply that the Sarkar, T (1993): “Rhetoric against Age of Consent”, father created a fear in the mind of the girl. Economic & Political Weekly, Vol 28, No 36, Her father slapped her and told her that her law has not helped in interventions at pp 1869-78. action would malign the family and bring the community level to curb child mar- Singh, S, Nikhil Dey and Aruna Roy (1994): “Child Marriage, Government and NGOs”, danger to the religion. He even threatened riages arranged by natal families. There to kill her or marry her off to some rich Economic & Political Weekly, Vol 29, No 23, pp 1377-79. person. When once such a threat is given to is a need for community-level sensitisa- Welchman, L and Sara Hossain (2005): ‘Honour’ a girl around 17 years of age, who is in love, tion, greater security for girls in public Crimes, Paradigms, and Violence against Women she has a right to protect her person and spaces, and better resources for educa- (London and New York: Zed Press). feelings against such onslaught, even if the tion of girls in poverty-stricken villages onslaught is from her own parents. Right and urban slums. What is being under- to life and liberty as guaranteed by the Permission for Reproduction of Constitution is equally available to minors. lined is that the campaign for stringent A father has no right to forcibly marry off laws has only strengthened patriarchal Articles Published in EPW his daughter, against her wishes. Neither power and weakened the negotiating No article published in EPW or part thereof has he the right to kill her, because she power of young girls contracting mar- should be reproduced in any form without intends to marry out of her religion. If a girl riages of choice. around 17 years of age runs away from her prior permission of the author(s). parents house to save herself from the on- It is important that contemporary slaught of her father and joins her lover, it is discourse be far more nuanced than A soft/hard copy of the author(s)’s approval no offence either on the part of the girl or on what one observed in the recent contro- should be sent to EPW. the part of the boy with whom she ran away versy. In the fi nal analysis, a progressive In cases where the email address of the to get married. voice must lend credence to the claims These judgments serve as a bench- of the weak against the might of status author has not been published along mark for the liberal interpretation of quo-ist institutional authorities. The with the articles, EPW can be contacted the constitutional provisions of equality agency exercised by a young teenage for help. and individual freedom. At times, our girl and her voice of protest against the

Economic & Political Weekly EPW july 20, 2013 vol xlviii no 29 13