I/V.
<<*`Tradition Can't Be An Excuse'*

***The Supreme Court rejected the stand of the Centre justifying the
provision protecting a man from facing rape charges for sex with his minor
wife on the grounds of protecting the sanctity of child marriage***
[emphasis added] and said the government cannot be oblivious to the trauma
faced by a girl child who is forced into marriage.

***The Centre had contended that child marriage was a social reality in the
country and Exception 2 in Section 375 of the Indian Penal Code was
consciously retained by Parliament to protect the sanctity of such
marriages.*** [Emphasis added.]

***It said that declaring the Exception as unconstitutional would lead to
criminal cases being filed in such cases and would destroy the marital life
of a girl who got married before turning 18.*** [Emphasis added.]

Rejecting the government's contention, a bench and Deepak Gupta said the
Centre's view that evolution of the concept of “marital rape“ of a girl
child could destroy the institution of marriage could not be accepted.

“Merely because child marriages have been performed in different parts of
the country as part of a tradition or custom does not necessarily mean that
the tradition is an acceptable one nor should be sanctified as such. Times
change and what was ac ceptable the few decades ago may not necessarily be
acceptable today ,“ Justice Lokur said.

Justice Gupta for his part observed, “The state is talking of the reality
of the child marriages. What about the reality of the rights of the girl
child? Can this helpless, underprivileged girl be deprived of her rights to
say `yes' or `no' to marriage?>>

(Excerpted from: 'Govt draws SC fire for legitimising rape' at <
http://epaperbeta.timesofindia.com/Article.aspx?eid=31804&articlexml=Govt-draws-SC-fire-for-legitimising-rape-12102017013001
>.)

II/V.
<<Terming child marriage a social evil that endangers the life and health
of the girl child, the Supreme Court on Friday said such marriages should
be declared void and stringent punishment prescribed for those who promote
and such practices.

***Although the Prohibition of Child Marriage Act (PCMA) bars child
marriages, these are held to be valid unless challenged by the minor,
virtually giving legal approval to the institution of child marriage till
its validity is challenged.*** [Emphasis aded.]

***Only Karnataka has amended the Act and declared any marriage of a child,
a female aged below 18 years and a male below 21 years, as void. Favouring
amendment in the law to declare child marriage illegal, a bench of Justices
Madan B Lokur and Deepak Gupta said that other states must follow
Karnataka's example.*** [Emphasis aded.]>>

(Excerpted from: 'Make child marriages void: Court' at <
https://timesofindia.indiatimes.com/india/make-child-marriages-void-court/articleshow/61044971.cms
>.)

III/V.
<<The Supreme Court on Wednesday lauded Karnataka for its pioneering act of
amending the Prohibition of Child Marriage Act (PCMA) to make child
marriage automatically void.

In Karnataka, the husband of a girl child would be liable for punishment
for child marriage under the amended PCMA; for penetrative sexual assault
or aggravated penetrative sexual assault under the POCSO Act; and if the
husband and the girl child are living together in the same or shared
household for rape under the IPC.

***A Bench of Justices Madan B. Lokur and Deepak Gupta lauded the Karnataka
State Legislature for amending the PCMA earlier this year and providing the
rest of India the “most obvious and appropriate resolution of the conflict”
between the IPC and the various laws regarding child marriage.*** [Emphasis
added.]

The Supreme Court quoted a study, published by the National Commission for
Protection of Child Rights and Young Lives based on the 2011 Census, that
over 20% girls in this country are married before attaining the age of 18.
More than one out of every five marriages violates the provisions of the
PCMA and the Hindu Marriage Act, 1955.>>

(Excerpted from: 'SC lauds Karnataka for declaring child marriage void' at <
http://www.thehindu.com/news/national/sc-lauds-karnataka-for-declaring-child-marriage-void/article19841187.ece
>.)

IV/V.
[Mr. Vishwanathan, when asked whether the judgment would affect the Muslim
Personal Law, which allows marriage between the age of 15 and 18, said
“criminal law is applicable across the board. There is no exception for
personal laws.”]

http://www.thehindu.com/news/national/sc-verdict-will-force-people-in-existing-child-marriages-to-live-separately-experts/article19840796.ece

SC verdict will force people in existing child marriages to live
separately: Experts
Krishnadas Rajagopal

NEW DELHI,  OCTOBER 11, 2017 21:52 IST
UPDATED: OCTOBER 12, 2017 07:48 IST

INDIRAJAISING

The Supreme Court judgment on Wednesday that sexual intercourse by a man
with his minor wife, aged below 18, with or without her consent, amounts to
rape will have an immediate effect, legal experts say.

Those who are already in a child marriage will be forced to live separately
till the girl turns 18.

“The presumption when a man and a woman are living together is that they
are not praying. The impact of the judgment for those who are in child
marriage will be to immediately live separately till the girl reaches the
age of 18. They will walk the tight rope. In future, the judgment acts as a
deterrent against child marriage because it directly exposes the husband to
criminal prosecution for rape. The judgment has the effect of completely
eradicating child marriage,” senior advocate Vishwanathan K.V. said.

***Mr. Vishwanathan, when asked whether the judgment would affect the
Muslim Personal Law, which allows marriage between the age of 15 and 18,
said “criminal law is applicable across the board. There is no exception
for personal laws.”*** [Emphasis added.]

Senior advocate Indira Jaising also agreed that personal laws would not
come in the way of the judgment as the Indian Penal Code is applicable
across religions.

Graph375JPG

‘Progressive verdict’
Calling the verdict “progressive,” Ms. Jaising said the “logical outcome”
of the judgment was to make child marriages automatically void.

As of now, a child marriage is null and void only if the child was deceived
out of the custody of the guardian, forced or compelled, sold into marriage
or trafficked.

Section 3 of the Prohibition of Child Marriage Act (PCMA) provides that a
child marriage is voidable at the option of any one of the parties to the
child marriage. In fact, this Section puts the burden on the child bride or
groom to seek a declaration of nullity from a court of law.

Ms. Jaising said the judgment addresses the issue of a husband’s “captive
access” of his minor wife.

However, she said the judgment should not be used to criminalise the
“experimentalism of the body” seen among adolescents who are aged between
15 and 18.

Supreme Court advocate Aishwarya Bhati also agreed that declaration of
child marriages as void or a complete ban on child marriage is the
“necessary corollary” to this judgment. She said it had to be seen whether
the government would use this verdict as an opportunity to remove the
“stigma and shame of child marriage” on the nation.

Third parties
However, Ms. Bhati expressed certain apprehensions about whether the
judgment had safeguarded couples from harassment by third parties. “Third
parties should not be allowed to complain, like in the case of adultery.
Only the aggrieved person, that is the child bride, should be allowed to
lodge the complaint with the police,” Ms. Bhati said.

But Mr. Vishwanathan said third parties can indeed bring to the notice of
the police about people living in child marriage.

Advocate Prashant Bhushan said the judgment was correct and harmonises the
IPC with other anti-child abuse laws like POCSO.

“The judgment reinforces the fact recognised by other laws that a child is
not in a position to grant or not grant consent,” Mr. Bhushan said.

V.
[<<A groups of petitions challenging the marital exception to Section 375
in its entirety is currently being heard by the Delhi high court. The lead
petitioners in the case NGO, the RIT Foundation and the All India
Democratic Women’s Association (AIDWA) argue that the exception under
Section 375, by discriminating against married women, violates Articles 14
and 15 of the constitution, which prohibit discrimination without an
intelligible basis, as well as violating Article 21, which guarantees the
right to life and personal liberty, and Article 19, which should guarantee
the freedom to express or withhold sexual desire in all consensual
contexts, The Wire reported earlier.>>

(Source: 'Sex With Minor Wife Is Rape, Rules Supreme Court' at <
https://thewire.in/186490/minor-wife-sex-rape-supreme-court/>.)

https://timesofindia.indiatimes.com/india/focus-now-on-marital-rape-activists/articleshow/61044992.cms

Focus now on marital rape: Activists

Ambika Pandit | TNN | Oct 12, 2017, 04:22 IST

NEW DELHI: Women's organisations have described the Supreme Court judgment
criminalising sex with a minor wife as a development that sets ground for
deterrence and reinforces that child marriage is an ill that needs to be
prevented and punished.

These organisations also said it throws open a larger debate on the issue
of marital rape and issues surrounding "age of consent" under Protection of
Children from Sexual Offences Act 2012.

LATEST COMMENT
Marital rape again has a high potential to become a tool to harass husband
and his family just like dowry where more than 94% cases even SC found to
be FALSE.....Also around 50% RAPE and HARASSMENT c... Read More
S Pandey

"On one hand we are saying that marriage below 18 years is child marriage
and yet we are having a different age of consent. Now the SC has clarified
the issue," said Zakia Somana of the Bharatiya Muslim Mahila Andolan
welcoming the SC judgment.

However, some wondered how the order will be implemented. Activist Bharti
Sharma said, "Child marriage is illegal in India and the SC order is a
positive step as it will help create deterrence against the ill of child
marriage. However, executing this is complex."

Activist Kalpana Viswanath from Jagori who has been at the forefront on
various women rights issues feels the SC order brings to the fore the issue
of rape in marriage. "t is important to shake-up the sanctity surrounding
marriage as an institution," she said. Enakshi Ganguly from Haq: Centre for
Child Rights said that while the SC judgement clarifies the issue of age of
consent within child marriage it opens up several new issues. "The fact
that the child marriage law stays the way it is will throw up challenges
especially pertaining to mandatory reporting under POCSO 2012," she pointed
out. Ganguly said the judgement also gives rise to worries whether this
will set the stage for deciding on the age of consent debate in the context
of POCSO as far as consensual sex between minors is concerned.

-- 
Peace Is Doable

-- 
You received this message because you are subscribed to the Google Groups 
"Green Youth Movement" group.
To unsubscribe from this group and stop receiving emails from it, send an email 
to [email protected].
To post to this group, send an email to [email protected].
Visit this group at https://groups.google.com/group/greenyouth.
For more options, visit https://groups.google.com/d/optout.

Reply via email to