Prajnya Gender Talks, July 2022 || Child Marriage: Mapping the Legal Conundrum by Dr. Ruchira Goswami


9th July, 2022

Rapporteur: Meghna Menon

For the Prajnya Gender Talks on 9th July, 2022, we had with us Dr. Ruchira Goswami, who spoke on the topic ‘Child Marriage: Mapping the Legal Conundrum’. Prof. Ruchira teaches at the National University of Juridical Sciences, Kolkata where she offers courses in Sociology, Human Rights, Gender and Law, Child Rights and Film and Law. She was the Head of the Centre for Child Rights, NUJS, a multidisciplinary centre set up in partnership with UNICEF with the mandate of research, documentation, and advocacy on child rights issues. Her talk focussed on the journey of the law, as well as the complexities and the nuances between different legislations in the country that talk about child marriage, age of consent and adolescent sexuality in India.

Prof. Ruchira began the session by mapping the history of the law dealing with child marriages in India. She narrated the story of Rukhmabai, who was married off early, in the late 1880s. The marriage was never consummated, as Rukhmabai never went to live with her in-laws. According to her, her husband was not a capable or ideal partner, and in order to continue her education, she lived with her natal family. When Rukhmabai was 20 years of age, her husband filed for Restitution of Conjugal Rights, stating that she should stay with him. She refused to do so, despite the Privy Council ruling against her and ordering for her imprisonment if she does not respond to the claim of the RCR. Rukhmabai stated that she would rather be imprisoned than live with her husband, and the case was settled out of court. During this time, Rukhmabai also wrote under the pseudonym ‘A Hindoo Lady’ in the Times of India on Hindu girls getting married at a young age and the plight of a Hindu widow. She stated that she could not go back to her husband because she was married off at an early age (when she was 10) and her consent was not sought to solemnise the marriage, questioning if her consent did matter as she was only 10 years of age. Prof. Ruchira stated this to be a landmark case study in understanding the right of a woman to consent to marriage, and sexual relations as well as better understand the age of consent debate. The speaker also narrated the case study of Phulmoni Dasi, a young child who was raped to death by her husband on her wedding night, and this, she notes, opened up a whole new debate on the rape of girls within marriages. Additionally, she spoke about sexual violence against Bhanwari Devi in the year 1990, and the fight for justice leading to the formulation of the Prevention of Sexual Harassment of Women at Work (POSH) Act. Another landmark case study that was discussed during the PGT was on Shakuntala Verma, a social worker who worked on the prevention of child marriages in Rajasthan in the early 2000s. “We see that the tentacles holding on to child marriages are really, really strong”, Prof. Ruchira noted.

Prof. Ruchira also spoke at length about the customary law undergoing various amendments to increase the age of marriage, and finally, becoming a statutory law called the “Child Marriage Restraint Act” which recognised that child marriages cannot be completely stopped, and can only be restrained. In 2006, this law was replaced with the “Prohibition of Child Marriages Act”, and the speaker explained that the law not only became stricter (with the changes in terminology and punishments) but also introduced the concept of declaring a marriage “void” and “voidable”. Explaining the same, Dr. Ruchira asked, “How many girls in India will be able to declare their marriages as void, especially without the support of the State and NGOs?”

Moving away from the statutory criminal law on child marriages, Prof. Ruchira Goswami also shed light on other laws dealing with the age of consent in India, like the IPC Section 375 (Rape Law), the age of sexual consent in the IPC, as well as the Protection of Children from Sexual Offences Act. All three of these legislation had different ages of consent. There were also conflicting perspectives arising here on whether the POCSO Act and the Prohibition of Child Marriages Act must trump other laws as the two are statutory in nature. The Supreme Court verdict in 2013 and in 2017 made amendments to the aforementioned laws and changed the age of sexual consent to 18 years of age.

With this, Prof. Ruchira drew the attention of the audience to the lack of recognition of adolescent sexuality in the laws of the country. The general idea is that people become sexual beings only after reaching the age of 18. This leaves no room for discussing adolescent participation and agency, stated the speaker. Shedding light on the recent discussions surrounding the increase in the age of marriage of girls to 21, she expressed how these decisions do not equip a woman with the agency and autonomy to make decisions concerning her marriage. Furthermore, she stated that this might prevent women from having relationships with men of that choice, particularly in cases concerning intercaste and intercommunity marriages.

The session concluded with Dr. Ruchira mentioning how girls cannot get married off, or choose to marry before the age of 18, and that the law fails to recognise adolescents as sexually active beings. A question was raised about how abortion laws play into this picture, when the girl is below 18 years of age. Prof. Ruchira answered that when an unwed teenager finds herself pregnant and seeks an abortion, she is asked to reveal her age and call for her parents. In the event that she does not want her parents to know, and because she cannot access the health system in a legal way, the teenager is forced to seek unsafe abortions in unregistered clinics. However, the doctors have a duty to inform the police if the girl is below 18 years of age, as it is a POCSO case. But that leads to her autonomous self being obliterated, stated the speaker. Another question was raised about what happens to a girl below the age of 18 if her husband (who is also below 18) is in jail, and the girl does not wish to go back to her parents. Dr. Ruchira noted this to be a common occurrence these days, and as girls below the age of 18 are still seen as children under the eyes of the law, the police will either release the girl to her parents or put her in a government-run shelter for children.

The PGT ended with conversations surrounding how the legislations have patriarchal notions on chastity. So, while the law and the society fail to view children as sexually active beings, there is also the perception of a girl child being a burden. Dr. Ruchira concluded the PGT by stating that, lately, the need to get a girl married also comes with parents wanting to prevent marriages out of wedlock.