• The Implications of the ‘Minor Wife’ Decision

    "The practice of a woman becoming property of her husband upon getting married to him and that her identity automatically merges with the identity of the man to whom she gets married"

    Kunika K

    October 20, 2017

    Indian youth hold candles during a protest against sexual violence in New Delhi, India, Monday, Feb. 9, 2015.Police were searching Monday for a man who raped a Japanese student sightseeing in northern India, while elsewhere they announced the arrest of eight men suspected of brutally raping and killing a Nepalese woman, as India authorities continue to struggle to address chronic sexual violence. (AP Photo/ Tsering Topgyal)

     

    On the International Girl Child Day, the Supreme Court delivered a historic judgement by recognising the independent identity of women. The Court acknowledged the plight of the girls aged 15 years and below, who had been carrying the burden of an archaic law, by declaring that sex with a minor wife amounts to rape. The inconsistencies in different laws were harmonised to read down the ‘unnecessary and artificial distinction’ created by the legislature ‘between a married girl child and an unmarried girl child’ which had ‘no reasonable nexus with any objective sought to be achieved.’ Hailing the ‘arbitrary discrimination’ to be contrary to the constitutional philosophy, the Court also held the provision to be responsible for numerous social evils such as trafficking of girl child.

    Though limited to the issue of rape of minor wife, the decision is indeed path-breaking, having long term effects on the jurisprudence of women rights in the country. The principles enumerated by this decision would shape the future debates on various issues relating to bodily integrity and equality of women in the society.

    Marital Rape

    Even though the Court ‘refrained from making any observation with regard to the marital rape of a woman’ who is an adult, the reasoning adopted by the Court in reaching the conclusion with respect to a minor wife could very well be accepted for marital rape of an adult wife.

    Referring to the Justice J.S. Verma Committee, the Court noted the observation made in the report that “the exemption for marital rape stems from a long out-dated notion of marriage which regarded wives as no more than the property of their husbands. According to common law, a wife was deemed to have consented at the time of the marriage to have intercourse with her husband at his whim. Moreover, this consent could not be revoked.” This immunity to the husbands, however, has now been withdrawn in almost all the jurisdictions where it has been recognised that marriage is “an association of two individuals with separate intellectual and emotional makeup” (US Supreme Court).

    Further, the Court rejected the submission of implied consent given by wives by virtue of getting married, with the emphatic reminder that ‘those days are long gone when a married woman or a married girl could be treated as subordinate to her husband or at his beck and call or as his property”. The constitutionally guaranteed rights of equality and equal status of women in the society was upheld with the declaration of any contrary theory to be an ‘unconstitutional myth’ liable to be ‘completely demolished’.

    The only feature distinguishing consensual sexual intercourse with rape is consent and by devising such a consent jurisprudence where a wife is not assumed to have given an open consent for sexual intercourse for all times, the Court has definitely paved the way for criminalising marital rape even for adult wives.

    The practice of Devdasi

    Devdasi may have been outlawed by various state legislations from time to time, however, this evil of giving away girl child as dasi (slave) to the dev (God) is still widely prevalent in various parts of the country. Girl children, usually minors, are technically married to the God of the temples (read as married to the priest of the temples) forcing them into a lifetime of sexual exploitation.

    Now, with the declaration of the Court that sexual intercourse with a minor girl in all situations would amount to rape, it would be difficult for this practice to sustain. Moreover, the girl child is no longer allowed to be considered a chattel devoid of any bodily integrity who could be given away by her parents to reel under the agony of sexual exploitation. Taking note of the various reports highlighting the violence, neglect, abandonment, psychological disadvantage, low self esteem, human trafficking and under-nutrition faced by girl child who are married away at an early age, the Court abhorred this practice which is entirely contrary to the well-being of a girl child.

    With the emphatic reiteration that the welfare of the girl child is of paramount consideration, and by rejecting the ‘prevalent custom and practice’ argument of the government, the Court has shown the light to obliterate this degrading practice.

    Automatic Renunciation of Religion

    The Supreme Court is setting up a Constitution bench to hear a matter on the religious identity of a woman who gets married under the Special Marriage Act, which is a special legislation to allow a man and a woman belonging to different religious believes to get married. However, as per certain traditions, a woman automatically gets converted to the religion of her husband upon marriage. The issue before the Court is of religious freedom of a woman as guaranteed under Article 25 of the Constitution of India and whether such automatic conversion could be permissible.

    This practice is also an upshot of the age-old adage that a woman becomes property of her husband upon getting married to him and that her identity automatically merges with the identity of the man to whom she gets married. This ‘doctrine of merger’ has been distinctly overruled by the Supreme Court through this decision. The Court has repeatedly emphasised upon the separate individual identity of every women, which remains unaffected by any event, not even marriage!

    The equal status of women in the society is not allowed to be derogated in any situation and the women, therefore, would retain autonomous control over their bodies and could not be forced to part with their identities.

    This remarkable decision has, thus, broken the patriarchal control over women and has initiated a regime where the unconstitutional and evil practices would surely be completely demolished.


     

    First published in The Citizen.

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