I/V. <<*`Tradition Can't Be An Excuse'* ***The Supreme Court rejected the stand of the Centre justifying the provision protecting a man from facing rape charges for sex with his minor wife on the grounds of protecting the sanctity of child marriage*** [emphasis added] and said the government cannot be oblivious to the trauma faced by a girl child who is forced into marriage.
***The Centre had contended that child marriage was a social reality in the country and Exception 2 in Section 375 of the Indian Penal Code was consciously retained by Parliament to protect the sanctity of such marriages.*** [Emphasis added.] ***It said that declaring the Exception as unconstitutional would lead to criminal cases being filed in such cases and would destroy the marital life of a girl who got married before turning 18.*** [Emphasis added.] Rejecting the government's contention, a bench and Deepak Gupta said the Centre's view that evolution of the concept of “marital rape“ of a girl child could destroy the institution of marriage could not be accepted. “Merely because child marriages have been performed in different parts of the country as part of a tradition or custom does not necessarily mean that the tradition is an acceptable one nor should be sanctified as such. Times change and what was ac ceptable the few decades ago may not necessarily be acceptable today ,“ Justice Lokur said. Justice Gupta for his part observed, “The state is talking of the reality of the child marriages. What about the reality of the rights of the girl child? Can this helpless, underprivileged girl be deprived of her rights to say `yes' or `no' to marriage?>> (Excerpted from: 'Govt draws SC fire for legitimising rape' at < http://epaperbeta.timesofindia.com/Article.aspx?eid=31804&articlexml=Govt-draws-SC-fire-for-legitimising-rape-12102017013001 >.) II/V. <<Terming child marriage a social evil that endangers the life and health of the girl child, the Supreme Court on Friday said such marriages should be declared void and stringent punishment prescribed for those who promote and such practices. ***Although the Prohibition of Child Marriage Act (PCMA) bars child marriages, these are held to be valid unless challenged by the minor, virtually giving legal approval to the institution of child marriage till its validity is challenged.*** [Emphasis aded.] ***Only Karnataka has amended the Act and declared any marriage of a child, a female aged below 18 years and a male below 21 years, as void. Favouring amendment in the law to declare child marriage illegal, a bench of Justices Madan B Lokur and Deepak Gupta said that other states must follow Karnataka's example.*** [Emphasis aded.]>> (Excerpted from: 'Make child marriages void: Court' at < https://timesofindia.indiatimes.com/india/make-child-marriages-void-court/articleshow/61044971.cms >.) III/V. <<The Supreme Court on Wednesday lauded Karnataka for its pioneering act of amending the Prohibition of Child Marriage Act (PCMA) to make child marriage automatically void. In Karnataka, the husband of a girl child would be liable for punishment for child marriage under the amended PCMA; for penetrative sexual assault or aggravated penetrative sexual assault under the POCSO Act; and if the husband and the girl child are living together in the same or shared household for rape under the IPC. ***A Bench of Justices Madan B. Lokur and Deepak Gupta lauded the Karnataka State Legislature for amending the PCMA earlier this year and providing the rest of India the “most obvious and appropriate resolution of the conflict” between the IPC and the various laws regarding child marriage.*** [Emphasis added.] The Supreme Court quoted a study, published by the National Commission for Protection of Child Rights and Young Lives based on the 2011 Census, that over 20% girls in this country are married before attaining the age of 18. More than one out of every five marriages violates the provisions of the PCMA and the Hindu Marriage Act, 1955.>> (Excerpted from: 'SC lauds Karnataka for declaring child marriage void' at < http://www.thehindu.com/news/national/sc-lauds-karnataka-for-declaring-child-marriage-void/article19841187.ece >.) IV/V. [Mr. Vishwanathan, when asked whether the judgment would affect the Muslim Personal Law, which allows marriage between the age of 15 and 18, said “criminal law is applicable across the board. There is no exception for personal laws.”] http://www.thehindu.com/news/national/sc-verdict-will-force-people-in-existing-child-marriages-to-live-separately-experts/article19840796.ece SC verdict will force people in existing child marriages to live separately: Experts Krishnadas Rajagopal NEW DELHI, OCTOBER 11, 2017 21:52 IST UPDATED: OCTOBER 12, 2017 07:48 IST INDIRAJAISING The Supreme Court judgment on Wednesday that sexual intercourse by a man with his minor wife, aged below 18, with or without her consent, amounts to rape will have an immediate effect, legal experts say. Those who are already in a child marriage will be forced to live separately till the girl turns 18. “The presumption when a man and a woman are living together is that they are not praying. The impact of the judgment for those who are in child marriage will be to immediately live separately till the girl reaches the age of 18. They will walk the tight rope. In future, the judgment acts as a deterrent against child marriage because it directly exposes the husband to criminal prosecution for rape. The judgment has the effect of completely eradicating child marriage,” senior advocate Vishwanathan K.V. said. ***Mr. Vishwanathan, when asked whether the judgment would affect the Muslim Personal Law, which allows marriage between the age of 15 and 18, said “criminal law is applicable across the board. There is no exception for personal laws.”*** [Emphasis added.] Senior advocate Indira Jaising also agreed that personal laws would not come in the way of the judgment as the Indian Penal Code is applicable across religions. Graph375JPG ‘Progressive verdict’ Calling the verdict “progressive,” Ms. Jaising said the “logical outcome” of the judgment was to make child marriages automatically void. As of now, a child marriage is null and void only if the child was deceived out of the custody of the guardian, forced or compelled, sold into marriage or trafficked. Section 3 of the Prohibition of Child Marriage Act (PCMA) provides that a child marriage is voidable at the option of any one of the parties to the child marriage. In fact, this Section puts the burden on the child bride or groom to seek a declaration of nullity from a court of law. Ms. Jaising said the judgment addresses the issue of a husband’s “captive access” of his minor wife. However, she said the judgment should not be used to criminalise the “experimentalism of the body” seen among adolescents who are aged between 15 and 18. Supreme Court advocate Aishwarya Bhati also agreed that declaration of child marriages as void or a complete ban on child marriage is the “necessary corollary” to this judgment. She said it had to be seen whether the government would use this verdict as an opportunity to remove the “stigma and shame of child marriage” on the nation. Third parties However, Ms. Bhati expressed certain apprehensions about whether the judgment had safeguarded couples from harassment by third parties. “Third parties should not be allowed to complain, like in the case of adultery. Only the aggrieved person, that is the child bride, should be allowed to lodge the complaint with the police,” Ms. Bhati said. But Mr. Vishwanathan said third parties can indeed bring to the notice of the police about people living in child marriage. Advocate Prashant Bhushan said the judgment was correct and harmonises the IPC with other anti-child abuse laws like POCSO. “The judgment reinforces the fact recognised by other laws that a child is not in a position to grant or not grant consent,” Mr. Bhushan said. V. [<<A groups of petitions challenging the marital exception to Section 375 in its entirety is currently being heard by the Delhi high court. The lead petitioners in the case NGO, the RIT Foundation and the All India Democratic Women’s Association (AIDWA) argue that the exception under Section 375, by discriminating against married women, violates Articles 14 and 15 of the constitution, which prohibit discrimination without an intelligible basis, as well as violating Article 21, which guarantees the right to life and personal liberty, and Article 19, which should guarantee the freedom to express or withhold sexual desire in all consensual contexts, The Wire reported earlier.>> (Source: 'Sex With Minor Wife Is Rape, Rules Supreme Court' at < https://thewire.in/186490/minor-wife-sex-rape-supreme-court/>.) https://timesofindia.indiatimes.com/india/focus-now-on-marital-rape-activists/articleshow/61044992.cms Focus now on marital rape: Activists Ambika Pandit | TNN | Oct 12, 2017, 04:22 IST NEW DELHI: Women's organisations have described the Supreme Court judgment criminalising sex with a minor wife as a development that sets ground for deterrence and reinforces that child marriage is an ill that needs to be prevented and punished. These organisations also said it throws open a larger debate on the issue of marital rape and issues surrounding "age of consent" under Protection of Children from Sexual Offences Act 2012. LATEST COMMENT Marital rape again has a high potential to become a tool to harass husband and his family just like dowry where more than 94% cases even SC found to be FALSE.....Also around 50% RAPE and HARASSMENT c... Read More S Pandey "On one hand we are saying that marriage below 18 years is child marriage and yet we are having a different age of consent. Now the SC has clarified the issue," said Zakia Somana of the Bharatiya Muslim Mahila Andolan welcoming the SC judgment. However, some wondered how the order will be implemented. Activist Bharti Sharma said, "Child marriage is illegal in India and the SC order is a positive step as it will help create deterrence against the ill of child marriage. However, executing this is complex." Activist Kalpana Viswanath from Jagori who has been at the forefront on various women rights issues feels the SC order brings to the fore the issue of rape in marriage. "t is important to shake-up the sanctity surrounding marriage as an institution," she said. Enakshi Ganguly from Haq: Centre for Child Rights said that while the SC judgement clarifies the issue of age of consent within child marriage it opens up several new issues. "The fact that the child marriage law stays the way it is will throw up challenges especially pertaining to mandatory reporting under POCSO 2012," she pointed out. Ganguly said the judgement also gives rise to worries whether this will set the stage for deciding on the age of consent debate in the context of POCSO as far as consensual sex between minors is concerned. -- Peace Is Doable -- You received this message because you are subscribed to the Google Groups "Green Youth Movement" group. 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