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Times of India’s Initiative ‘Identity Crisis’: Consent – Underage Wives Can Have Sex, Not Teens

  • JWB Post
  •  July 11, 2015

TOI’s initiative is empowering. Last time, they spoke about how we can help women at  home become more financially independent. This time it’s about underage wives and asking their consent. Read….

Girls between 16 and 18 are now allowed less sexual freedom than their moms’ generation, thanks to retrograde changes in the law!

When the Indian Penal Code (IPC) was enacted way back in 1860, the age of consent -the minimum age at which a girl is legally competent to have consensual sex -was fixed at 10. In other words, even if she was a willing partner, sex with a girl less than 10 was deemed to be statutory rape. In 1891, the colonial government raised the age of consent to 12, following outrage over the death in Bengal of child bride Phulmonee as a result of “consensual sex“ with her adult husband.Yet, conservatives led by no less than Bal Gangadhar Tilak attacked the incremental reform as “dangerous precedent“ and “interference with Hinduism“.

After a couple of more such incremental reforms, the age of consent stabilized in 1940 at 16, which is the global norm. Seven decades later, in an even more liberal scenario, conservative forces struck again, this time to increase -not decrease -the age of consent. What gave them the opportunity to demand raising the age of consent from 16 to 18 was the process of enacting a special law, the Protection of Children from Sexual Offences (POCSO) Bill. In 2011, a parliamentary standing committee headed by Oscar Fernandes recommended that change in the age of consent despite opposition from the ministry of women and child development. Strengthened by the standing committee’s report, the conservative opinion forced the Manmohan Singh government to enhance the age of consent to 18 in the POCSO bill passed in the Budget session of 2012.

As a corollary, the government was confronted with the demand to make a corresponding change in the IPC. But the public outrage over the Nirbhaya gang rape in December 2012 came in the way as feminist groups lobbied with the government to keep the age of consent at 16. Eventually, the conservatives trumped the liber als when an all-party meeting compelled the government to drop the proposal of rolling back the age of consent to 16 in POCSO. So when rape provisions were tightened in 2013, the age of consent was raised to 18 in the IPC too.The resulting legal landscape is fraught with anomalies, making girls more vulnerable than ever before.

ILLIBERAL COMPANY

The most plausible justification offered for the enhanced age of consent is that it would be on a par with the age of marriage for women. But then, since the Prohibition of Child Marriage Act, 2006 (as discussed in an earlier article in this series) does not actually invalidate marriage of women below 18, the age of consent does not apply to an underage wife, unless she is below 15. The IPC continues to exclude underage wives between 15 and 18 from the ambit of rape. This despite the post-Nirbhaya recommendation of the Justice Verma Committee to remove the immunity granted to marital rape. For all the changes made to the definition of rape in 2013, it still bears this caveat: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.“ Thus, the Manmohan Singh government privileged the institution of marriage over the woman’s sexual autonomy . This retrograde policy is being perpetuated by the Narendra Modi government, as borne out by a reply in Parliament in April. Citing a UN estimate that 75% of married women in India were subjected to marital rape, DMK MP K Kanimozhi had asked whether the government was planning to criminalize it. Junior home minister H P Chaudhary said: “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mind set of the society to treat marriage as a sacrament.“ The upshot is that while the age of consent has been increased for unmarried women to 18, it remains at 15 for those who are married.

The worst hit by the changes made in 2012 (through POCSO) and in 2013 (through IPC) are unmarried girls between 16 and 18.Till these changes kicked in, India, like other liberal societies, had allowed girls of this age bracket to engage in consensual sex. When it had this enlightened approach, India was in the company of Britain, Norway , Canada, Switzerland, Israel, Russia, South Africa and a majority of the states of the US.By criminalizing teenage sex in the manner it did, India has since landed in the company of illiberal democracies such as Rwanda, Uganda, Chile, Peru and Egypt.The only countries that are harsher than India on teenage sex are those which do not recognize any age of consent at all. In Islamic countries like Saudi Arabia, Yemen, Iran and Pakistan, any sex outside marriage is criminal and liable to severe punishment, even if it is entirely consensual.

BAD TO WORSE

Historians in the future may be hard put to figure why India chose to turn illiberal in this regard six decades after Independence. It is indeed ironic that while everything else has become more accessible, adolescent girls between 16 and 18 are now allowed less sexual freedom than their predecessors. Women’s groups have therefore been campaigning that normal sexual exploration during growing-up years should not be criminalized.

The situation threatens to worsen once the new juvenile justice bill is passed into law. For, even if the male partner is also between 16 and 18, he will then be liable to be tried as an adult. One of the key provisions of the bill, which was passed by the Lok Sabha in May and is awaiting the nod of the Rajya Sabha, permits juveniles between 16 and 18 to be tried as adults for heinous offences, including rape. From the viewpoint of a girl between 16 and 18, this compounds the legal changes made in 2012 and 2013 which have already made it impossible for her to have consensual sex without exposing her partner to the charge of statutory rape. And now, if the Rajya Sabha too clears the juvenile justice bill, then her partner may be punished as an adult criminal, with a minimum sentence of seven years, even if he is of her age group.Teenage sex has never been more stigmatized in India.

This article originally appeared in The Times of India.

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