In February this year, Pakistan's Parliament sought to toughen the punishment for child marriage by introducing a mandatory five-year prison sentence and a fine of up to one million rupees ($10,000) for those caught marrying any girl under the age of 16.
The two judges wrote separate judgments totalling 127 pages. Her willingness or consent was of no concern.
Further, the constitutional validity of the Exception was challenged as being violative of Articles 14 & 15 (3) on the premise that Exception 2 to section 375 arbitrarily discriminates between minor girls on the basis of their marital status and is not in consonance with the obligation of the State to enact beneficial legislation making special provisions for women and children.
"A child remains a child whether she is described as a street child or a surrendered child or an abandoned child or an adopted child".
Interestingly, although the court has categorically stated that it is not dealing with the larger issue of marital rape, Justice Madan B Lokur has held that "Constitutionally, a female has equal rights as a male and any theory that propounds a constitutional myth to the contrary must be demolished." .
With this judgment, considered by experts as trigger to declaring child marriage void ab initio, the court ended the decades-old disparity between Exception 2 to Section 375 IPC and other child protection laws.
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Highlighting the inconsistencies in various laws, the Supreme Court on Wednesday also touched upon separate marriage laws for Hindus and Muslims and said the provisions make a "mockery" of the Prohibition of Child Marriage Act (PCMA). Education is the need of the hour and government should educate the masses on the right age for marrying their children.
The anomalies in the existing laws pertaining to the criminality of rape have often led to exploitation of minor girls in India. This is because of an incongruous provision in the Indian Penal Code that permits intercourse with a girl aged between 15 and 18 years on the grounds of her being married.
Justice Gupta, in a separate judgment, dealt with the abysmally low number of prosecutions and annulments of marriage filed under Prohibition of Child Marriage Act (PCMA). There is a practice in many parts of the country where children, both girls and boys, are married off, even before they attain puberty.
Further, child marriage although prevalent can not be defended and is a social evil that must be eliminated, for it compromises the reproductive autonomy and bodily integrity of a girl child who may be forced into early sexual intercourse and the consequent pregnancy which will be detrimental to her physical health and well being.
Though child marriage is prohibited, it is not automatically void under India's civil laws. She added that the apex court must consider such instances and come up with a solution for all.
"Hence, criminalising the consummation of a marriage with such a serious offence such as rape would not be appropriate and practical", the government argued, according the Times of India. But, the decision hasn't taken an individual's right to sexuality, into consideration.
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