Last month on International Day of the Girl Child (October 11), the Supreme Court of India issued a groundbreaking ruling that both affirmed child marriage as a violation of girls’ constitutional and human rights, as well as recognised nonconsensual sex within child marriages as rape. The judgment stated that nonconsensual sex within marriage involving girls under 18 years of age can be criminalised just the same as nonconsensual sex outside of marriage.
The landmark case eliminated the discrimination against married girls above 15 years of age that was created under IPC, in contradiction to the Prohibition of Children from Sexual Offences (POCSO) Act which makes no distinction between married and unmarried girls. The Supreme Court emphasised how child marriage harms girls’ sexual and reproductive health and recognised the constitutional obligation to ensure married girls’ reproductive rights.
The Supreme Court has emphasised the need to remove the onus the law places on girls to challenge child marriages and resulting abuse, and to develop a “focussed implementation plan” for the Prohibition of Child Marriage Act (PCMA). Timely legal support for women and girls is critical, particularly as the judgment only allows a one year statute of limitation for young brides to seek justice.
In addition, courts and law enforcement should not enable parents or guardians to use the law as a means of harassment or moral policing of adolescent girls. Stigma around adolescent sexuality, particularly outside of marriage, is a recognised cause of child marriage. Law reform is needed to secure greater respect for adolescent sexual and reproductive autonomy.
The Supreme Court decision reiterated the legal age of consent for sexual intercourse as 18 years of age with no exceptions, and stated that any reform must come from the legislature. A review of high court cases citing the PCMA undertaken by the Center for Reproductive Rights and Centre for Law and Policy Research reveals that instead of girls using this law to defend their rights, most of these cases are filed by parents seeking to stop their daughters from selfinitiating marriages or entering sexual relationships without their approval.
Such action represents a misuse of the law, and does nothing to further the judiciary’s promise of upholding girls’ right to bodily autonomy. One crucial measure to ensure that this decision is not exploited to harass and control adolescent girls is for lawmakers to recognise the possibility of consensual sex outside of marriage between adolescents who are close in age – and therefore do not typically have the same unequal power dynamics that exist with much older partners – as has been done in jurisdictions globally. This is an important step towards ending the stigma around adolescent sexuality that often leads parents to choose child marriages despite its grave risks.
The Supreme Court judgment also recognised the significant physical and mental health risks married girls face because of early pregnancy. The court found that rape within child marriages violates the bodily integrity of girls, causes trauma, and “destroys her freedom of reproductive choice”. Urgent law and policy reform is needed to ensure all girls (whether married or unmarried) can access reproductive health services without heightened scrutiny or procedural requirements.
For example, POCSO still includes mandatory reporting requirements for sexual abuse of children, defined any sexual activity involving children under 18 years, and this has led to healthcare workers fearing that they need to report all cases of girls seeking abortion. Similarly, girls are denied reproductive autonomy because of requirements for parental consent in the Medical Termination of Pregnancy Act to access abortion.
There is also a pressing need to expand comprehensive sexual education for all adolescents to enhance their agency in making informed choices for their reproductive health and rights. Therefore, the government must urgently remove restrictions in maternal health schemes that exclude pregnant girls under 19 years, despite their increased risk of death and injury from pregnancy.
The Supreme Court affirmed that “the human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance.” Now policymakers, law enforcement, the judiciary, and others must take concrete steps to implement this decision and ensure women and girls their human rights.
This decision should translate into respecting the bodily autonomy of every woman and girl, including destigmatising and decriminalising consensual sexual activity amongst adolescents and upholding their reproductive rights.
Jayna Kothari is Executive Director for Centre for Law and Policy Research. Payal Shah is Senior Counsel for Asia at the Center for Reproductive Rights