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India has made a significant change to its laws about rape. The Supreme Court has ruled that if a husband has sex with his wife and she is under 18, he is committing an act of rape.
Up until now rape was illegal, but there was one glaring exception. A wife could not bring charges of rape against her husband unless she was under age 15 — an age set in a 1940 law.
But using the age of 15 seemingly posed a contradiction with several other laws in India meant to protect girls under 18. For one thing, marriage to a bride under age 18 was made illegal in 1978. Previously there had been younger age cutoffs for child marriage.
Also, the Protection of Children from Sexual Offenses Act, enacted in 2012, states that minors do not have the right to consent to sex. So having a sex with a minor of any age would be a crime.
But the reality in India didn't match the laws. Child marriage remains widespread to this day. And the contradiction between the age set in the 1940 law and subsequent laws was not addressed.
That's what this new ruling does. On Wednesday, a two-member bench of the Supreme Court of India ruled that sex with any underage girl, even if she's a bride, would be considered an act of rape. So child brides age 15 to 18 now have the same legal protection that younger girls do.
Of course, that still leaves women older than 18 who are raped by their husband without legal recourse.
But advocates for girls and women are hailing the law as a step in the right direction. "My sense is that this ruling might also in some way act as a deterrent against underage marriage," says Manish, a lawyer and researcher with the Centre for Policy Research in New Delhi who goes by only one name.
Lawyers who work with underage rape survivors say that often courts will treat minors as if they're adults, ignoring birth certificates to hasten plea bargains and move matters through the backlogged system faster. Sometimes, courts even force underage victims to marry their assailants. Age does matter, says Rashi Vidyasagar, a criminologist in Bangalore. So while this ruling is a small step in her view, she believes it could have an impact.
Implementation of the new ruling is going to be a challenge, says Vidyasagar. "Will the ruling apply from the day of the verdict? If it's applied retroactively, how far back?"
Vidyasagar asks semi-facetiously, "Do we automatically put their husbands in jail? How will we apply it? That's the question most of us are asking."
The new law does not address the issue of marital rape for wives over age 18. Vidyasagar and other advocates are hopeful that the courts will now tackle marital rape for women of all ages.
Chhavi Sachdev is a journalist based in Mumbai. Contact her @chhavi.
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