15, 16 or 18? Riddle of age of consent

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  • Published 21.06.12

New Delhi, June 20: Lowest age for a legally valid marriage: 18 years.

Lowest age at which one’s marriage becomes valid once solemnised: 14, 13, 12... as low as you like, no lower limit.

Lowest age at which a married couple can have sex: 18 years, once a newly enacted law receives presidential assent.

So, one may marry at 12 or an even younger age — as long as one avoids getting caught before the completion of ceremonies — but cannot consummate the marriage till one is 18.

Contradictory laws have already hobbled the fight against child marriage; now contradictory laws on the age of consent are set to compound the confusion, social activists say.

Swati’s mother, who went to a Delhi court accusing Ravinder of kidnapping and marrying her 14-year-old daughter, was taken aback when the girl stood up before the judge to say he had married her with her consent.

At 14, she is not entitled to give consent to her marriage but the court, not for the first time, went with the safest provision in Indian marriage and divorce law.

That provision — included in the Hindu Marriage Act (includes Jains and Buddhists), Muslim Marriage Act, Christian Marriage Act, Parsee Marriage and the Divorce Act —says that no marriage involving minors will be null and void unless one of the spouses seeks annulment.

It’s a principle that has led the courts to ratify more than two dozen marriages involving minors, both Hindus and Muslims, in the past two months.

However, though the Delhi court gave Swati and Ravinder the right to stay married, it cannot give them the right to consummate their marriage.

Under the Indian Penal Code, sex with a woman under 16 — under 15 if she’s the man’s wife — constitutes statutory rape and can bring a jail term between seven years and life. However, if this law says Ravinder must wait one year, another says he must wait four years.

The Protection of Children Against Sexual Offences Bill — passed recently and awaiting presidential assent — has raised the age of consent to 18 and has no separate age limit for husband-and-wife couples.

The bill exposes Ravinder to criminal procedures whenever anybody — family member, neighbour or khap panchayat — complains that he has had sex with his wife (for instance, when Swati becomes pregnant). The bill actually makes it mandatory for everyone to report any under-18 sex, including the doctor an underage but pregnant Swati may consult.

However, if that happens after Swati turns 16, Ravinder can create a legal tangle by citing the penal code-mandated age of consent.

Another fallout of the newest consent law is that if an under-18, unmarried girl wants an abortion, she may be driven to doing it surreptitiously to avoid exposing her partner to legal prosecution.

Social activists have two demands: one, every marriage should be dissolved once it is established that it involved a minor; and two, the Indian Penal Code should be amended to raise the age of consent to 18 years.

“The laws in our country in a way rationalise child marriages. But even though, for our lawmakers, a marriage involving a minor is legal once it has been solemnised, sex within that marriage isn’t,” said Ranjana Kumari, social activist and director of the Centre for Social Research, New Delhi.

“It’s a result of contradiction in policy and mindset of the framers of the laws. There should be one comprehensive, inter-related law regarding age of consent and marriage cutting across religions,” said right activist and Supreme Court lawyer Meenakshi Lekhi.

“Also, all these laws put together do not address the problem of child marriage. In fact, the courts are giving them legal sanction. All marriages below 18 years should be automatically made void.”