Third Eye: The judicial corrective of a social ill

New Delhi: The arguments heard by the Supreme Court in the October 18 decision regarding child marriages and the legal validity of the incident called ‘marital rape’ on October 21 are important as they relate to a possible intervention in the judiciary. In matters that aggravate the rights of the individual against the authority determined by socio-cultural perspectives and traditions.

A three-judge bench headed by the then Chief Justice of India DY Chandrachud filled a loophole in the Prohibition of Child Marriage Act (PCMA), 2006, on October 18, declaring that child ‘engagements’ were being used as a clever ploy for elopement. Punishment under the law violated fundamental rights such as ‘free choice, autonomy and childhood’ and called on Parliament to outlaw them.

Demonstrating a deep understanding of the nature of this social malaise, the apex court laid emphasis on ‘prevention’, saying that ‘prosecution’ alone was ineffective in bringing about social change. He pointed out that PCMA is a social legislation that needs the collective efforts of all stakeholders for its success.

The Center had moved the PCM (Amendment) Bill in December 2021, seeking priority of the Bill over personal laws pending in the relevant Parliamentary Standing Committee.

Taking this into account, the Supreme Court refused to extend the ban on child marriage to all faiths and left it to Parliament to legislate on the matter, but, as noted earlier, recommended a ban on child betrothals, which is favored by some communities in the name of protecting the girl child. child. This practice is also reflected in the innate idea in society that the girl child is seen as a ‘burden’ to be transferred to someone else through marriage.

Despite society’s progress towards accepting the ‘small family’ and recognizing the importance of ‘education for all’, the average family still suffers from the social disease of conforming to the difference between boys and girls in spending. resources are directed towards their cultivation.

If child marriage was untenable on all counts, then the top court was expected to ban it for entire communities; However, it appears that the Supreme Court did not seek a judicial diktat to resolve a socio-political issue and favored an evolution of law through the Parliamentary process in this regard, as befits a democratic dispensation.

The Supreme Court decision is notable for putting the judiciary and society on the same side in envisaging a multi-faceted approach to tackling the social ill that continues to affect millions of young girls and boys. law — PCMA 2006 criminalizes child marriage.

The resolution calls for stronger enforcement and greater accountability. Significantly, it acknowledges that both girls and boys suffered as a result of child marriage: girls suffered physical and emotional abuse, while boys were exposed to new pressures and responsibilities that changed their entire lives.

The Supreme Court ordered the appointment of Child Marriage Prevention Officers (CMPOs) across districts to focus on prevention of child marriages and also specifically empowered District Magistrates and Police Inspectors to prosecute persons facilitating or encouraging such marriages. Overall, the Supreme Court admirably underlined the need for a change in social attitudes towards child marriage, while upholding stringent legal measures against this disease.

Another issue of deep cultural significance currently being considered by the Supreme Court is the exception in paragraph (2) of Article 375 of the IPC, which is reiterated in Article 63 (2) of the Bharatiya Nyaya Samhita (BNS), which came into force in December 2023. , Sexual intercourse of a husband with his wife without her consent was excluded, provided that she is not less than 15 years of age as stated in the IPC and revised to 18 years in the BNS. definition of rape.

A three-judge division bench headed by Chief Justice Chandrachud began hearing on October 17 on the petitions against the exception termed by the petitioners as ‘marital rape’.

While the petitioners demanded that marital rape be criminalized, the Center took the view that punishing non-consensual sexual intercourse in marriage would affect marital relations and cause ‘serious disturbances’ in the institution of marriage. There was also concern that the consent clause could be abused, as it would be difficult for the husband to prove it.

The Supreme Court held a final hearing on October 22 to examine the constitutional validity of a law that grants immunity from prosecution to a husband who forces his underage wife to have sex with him. On October 23, the court adjourned the case for four weeks in view of Chief Justice Chandrachud’s retirement on November 10, forcing the reconstitution of the bench.

This case demonstrates the legal and social intricacies into which the Supreme Court has engaged by asking truly instructive questions. The court asked whether domestic violence, including false imprisonment and cruelty prior to forced consent, was punishable; So how can the sexual act be exempt from legal liability in this case?

The Chief Justice wondered whether making such sexual acts a criminal offense would mean that the judiciary would create a new criminal provision outside its jurisdiction.

Aggression and even violence before sexual intercourse are not uncommon in the Indian context. It is also possible that a certain kind of submissiveness on the part of women exists in many segments of society, which can be traced to gender inequality.

Spreading education and achieving financial independence still eluded many Indian women. Cultural heritage governed the institution of marriage in India, and what generally prevailed in the economically advanced societies of the West was not necessarily an ideal comparison. Moreover, wherever ‘marital rape’ is declared a crime, it can be assumed that it will definitely result in divorce.

In the case before the Supreme Court, one of the petitioners argued that the marital rape exception violated the right to equality and privacy, while another attributed the exception to the tradition of ‘patriarchy’, which was against the morality of the Constitution.

The centre’s booth appeared to bring together Indian cultural tradition with a modern approach to marriage. In its petition, the Center said the idea of ​​consent should be considered differently in marriage as there is a ‘reasonable expectation of sexual access from one’s spouse’, making it ‘excessive and disproportionate’ to punish a husband under the anti-rape law. laws.

The government has also firmly declared that there will be no compromise on crimes related to domestic violence and cruelty. This case before the Supreme Court, like the case on child marriage, tests the value of judicial intervention in matters that lie at the margins of tradition and cultural tradition on the one hand, and modern law on the other. It will be seen that the Supreme Court, as in the other case, adopted a reformist approach in interpreting the Penal Code regarding marital rape.