Friday, 3 July 2020

Can The Police Danda Curb Teenage Sexuality? Some Thoughts on the Age of Consent for Sex and Marriage in India

Updated: June 9, 2012 11:06 am

Judge Kamini Lau has done us all a great service by raising pertinent questions about the problems inherent in passing a legislation, to raise the age of consent for engaging in sexual relations from 16 to 18yrs for girls and 21 yrs of age for boys. This issue suddenly gained prominence with the Union Cabinet’s approval of the Protection of Children from Sexual Offences Bill 2011 It stipulates that having sex with a girl below 18 years of age will be deemed as “rape” irrespective of “consent or “lack of consent”.

This has been ostensibly done to protect children from sexual abuse, trafficking and forced sex. Even though the proposed law has several significant improvements in the existing legislation for dealing with sexual crimes against children, it has stirred a hornet’s nest by upping the age of consent. In the original Bill the age of consent was 16.

It is well known how even the existing law stipulating age of consent for marriage for girls being at 18 has often been misused by parents of rebellious daughters. They invoke the age of consent law to get the young couple hounded by the police on the trumped up charge that their daughter is below 18 and that the young man had “raped” or abducted their minor daughter. The young men land up in jail while the women end up in nari niketans (protection homes run by the government) which are worse than jails.

Judge Lau in fact made these comments, while dealing with a typical case, whereby the young woman’s parents had falsely implicated a young man of “raping” and eloping with their minor daughter even though she was actually above 18 and had married the man of her own volition.

The tendency of our government to pretend that passing a draconian law will frighten away offenders from committing what it designates as a crime, has resulted in numerous impractical and draconian laws, which are more often abused and misused by the law enforcement agencies to extort bribes from hapless citizens. This law is likely to suffer a similar fate because the machinery required for implementing such laws with integrity and sensitivity is altogether absent in India.

Contradictions in the Laws Defining Adulthood

Upping the age of consent from 16 to 18 is being welcomed not only by the anti trafficking lobby but also by the self appointed moral guardians of our society who feel perturbed by sexually active teenagers.

Recently, in a debate on this issue on NDTV during “The Big Fight” program, an audience participant who had heard us passionately argue on this issue pointed out the blatant contradiction in the way age of maturity has been defined by law in India. For the purpose of sex the age of consent is 16, for the purpose of voting and getting a driving license, it is 18. If you commit a crime between the age of 16 and 18, you are treated as a juvenile and punished accordingly. By 18 you are considered legally fit for being sent to jail. However, for the purpose of a legal marriage, the age of consent is 21 for boys and 18 for girls. For buying a bottle of beer or wine, one has to be over 25. However, when it comes to buying a rail or airplane ticket, one is treated as an adult and made to pay full fare after age 12!

Legal Age for Consensual Sex

It is well known that no matter how many restrictions society and family impose on pre-marital sex, many unmarried teenagers everywhere in the world and in all eras have had a tendency to become sexually active – either openly or surreptitiously. This is how the Power that created the human body set the hormonal clock. That is why, the world over, many marriages tend to take place soon after puberty. Societies that adopt repressive norms in dealing with pre-marital sex invariably become misogynist. Such woman hating societies put all manners of restrictions on women’s mobility and access to the outside world including imposing burqa and purda.

However, when we talk of open teenage or pre-marital sex, for most educated Indians, the reference points are Europe and America. This colonial mindset is due to the fact that most of us educated Indians have been disconnected from our own history, culture and society.

Among many tribals of Central India for instance, pre-marital teenage sex is socially sanctioned through the institution of ghotul whereby all young boys and girls of the village are sent off for collective living in a large house and taught important life skills. They have been called “kingdoms of the young” or “children’s republics.” Life in a ghotul includes initiation into sexual activity and opportunity to select a sexually compatible marriage partner. Married adults are not allowed to live in the ghotul. But village elders are within calling distance to curb sexually abusive or irresponsible behavior, if any. It is noteworthy that the concept of rape was altogether absent among such tribal communities till such time as they remained isolated or had minimal contact with more “civilized” outsiders. (For brief accounts of ghotul click here: http://en.wikipedia.org/wiki/Ghotul, http://www.kamat.com/kalranga/bastar/ghotul.htm, http://www.flickr.com/photos/collin_key/4548351965/))

Even among those tribal communities which lack the ghotul form of socialization of the young, there is no comparable stigma on pre-marital pregnancy. Traditionally, whoever the woman names as her impregnator has to accept responsibility and the community then makes sure the two are married. In Hindu shashtras this would be termed as Gandharva Vivah – one of the 8 accepted forms of male-female union Kalidasa’s Shakuntala may have suffered the pain of rejection when Dushyant failed to recognize or remember her on account of the curse of sage Durvasa. But she was not stigmatized in the ashram of her adoptive father, Kanva Rishi. On the contrary, she remained there as a much loved and cherished daughter. Her son became a much respected monarch. Shakuntala herself was born out of wedlock – a product of the sexual union between sage Vishwamitra and Maneka.

Among the diverse matrilineal communities of South and Eastern India, paternity was never a big issue because the children inherited the name and property in the mother’s line. Therefore, pre-marital pregnancy was treated no different from a post marital one. Our Victorian minded colonial rulers and missionaries found this so morally repugnant that they spent a great deal of energy in attacking these female centric family structures which gave women a great deal of sexual freedom to make or break sexual partnerships. They dubbed such forms of feminine autonomy as no better than prostitution. This cultural onslaught coupled with aggressive legal interventions pushed these matrilineal communities to move towards patrilineal and patrilocal family structures as proof of their readiness for ‘modernization”-often a euphemism for westernization.

Today, Hindu as well as Christian missionaries are carrying out systematic campaigns to convince tribals that their sexual mores are immoral. Tribal communities are also succumbing to this worldview because their traditional forms of social organization and accountability are possible only in very stable and homogeneous communities that accept the moral authority of elders. They do not work in a situation when tribal men and women are migrating to distant urban centers in search of employment and living amidst people with very contrary, often misogynist, moral values. Nor does it work in our fast changing towns and cities where the population is in constant flux and people are beginning to move away from caste and community controls.

Unfortunately, “modernizing” Indians are still trapped in the British Victorian mindset even while Europeans have moved away from earlier forms of repressive sexual norms. Therefore, we think of sexual freedom only in terms of emulating the the West.

Age of Consent for Marriage

It is noteworthy that the very same people who yell from the rooftops that the age of consent for sexual engagement should remain at 16, have never considered it necessary to say that the age of consent for marriage in India is unrealistically pegged at 18 for women and 21 for men. A section of feminist reformers have lobbied hard to get the age for women also upped to 21. This is a case of being more loyal than the king.

Today in North America and many European countries the permissible age of marriage is 16 with parental or judicial consent. In several countries it has been lowered to even 14 for both boys and girls. This is in recognition of the fact that unwed teenage mothers are far more vulnerable than those who are married. We deliberately overlook the fact that in most cases of real child marriages in India- say at the age of 8 or 10—the gauna or actual marriage and consummation takes place only around the age of 14. This does not mean I advocate early marriages. Quite the contrary.

But the Prohibition of Child Marriage Act of 2006 seems dutifully designed to carry forward with greater zeal the “civilizing mission” started by our colonial rulers from mid 19th century onwards. The Child Marriage Restraint Act of colonial vintage passed in 1929 was a far less aggressive piece of legislation than the law brought in through feminist advocacy playing to international galleries and their patrons in western donor agencies. The 1929 Act prohibited marriages below 15 for girls and below 18 for boys and did not try to annul existing marriages, except if the woman opted to do so after gaining majority.

Changing Social Profile of Groups Practicing Early Marriage

While most Indian liberals and feminists are willing to look benignly on teenage sex, they come down heavily on teenage marriages despite the fact that today teenage marriage is prevalent only among poor rural communities or their urban counterparts. Their poverty has denied them access to quality education and the new world of economic opportunities available to elite groups of our society. For such families the burden of dealing with teenage pregnancies of unwed daughters is too onerous. But the law enacted for dealing with such families is not only draconian but utterly nonsensical. Consider the implications of the following clauses:

“Whoever being a male adult above 18 years of age contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or fine which may extend to one lakh rupees or with both.”

Males are treated as legal adults at age 18 for all other purposes—including for going to jail—but for getting married they must be 21. Or else they are accused of ‘child marriage.’

The law also mandates similar punishment to a person who performs, conducts or abets any child marriage. The sultani farmaan further declares that: “where a child contracts a child marriage, any person whether as parent or guardian or any other person in any other capacity, lawful or unlawful, including any member of an organization or association of persons who does any act to promote the marriage or permits it to be solemnized or negligently fails to prevent it from being solemnized, including attending or participating in a child marriage, shall be punishable with rigorous imprisonment which may extend to two years and shall also be liable to fine which may extend up to one lakh rupees.”

However, in a typical fit of partisan generosity the law states that “no woman shall be punishable with imprisonment.”

Consider its implications: A woman of 17 has an affair with a 19 year old and gets pregnant. He then offers to or is persuaded to marry her in order to provide legitimacy to the relationship. For this “illegal” act, as per this law the man deserves two years rigorous imprisonment and a fine of rupees one lakh! What great favour is it to the woman that she is spared imprisonment and left to fend for herself or that 2 years of jail will leave the man unfit for any respectable job?

Take also the predicament of a father who sees his 16 year old daughter sexually involved with or seeking relationships with young men. Instead of letting her risk becoming an unwed mother, he decides to let her get married to either the man of her choice or one that her parents select for her. He too invites two years rigorous punishment and a fine of Rs 100,000. Never mind, if the family has never seen, leave alone possess, one lakh rupees! We cannot afford to forget that unlike in late 19th and early part of 20th century when child or teenage marriages were common among upper castes and classes, today it is mostly the poorer social groups that marry their daughters young. To begin with they will have to incur debt or sell off their land or other meager assets to pay for lawyers, bribes to the police and witnesses while fighting the legal case. On top of it they have to pay a punitive fine. No wonder they are not impressed by such concern for the well being of their daughters. It is time we try in all humility to understand the economic and social compulsions that lead to early marriages among the poor.

People are not held guilty if they fail to stop a murder or rape. But if a neighbor or distant relative or a local traders association fails to call the police and get the family involved in teenage marriage arrested, they are assumed to be guilty. If this is not inflicting police raj on poor communities, what is?

I hope those who want to raise the age of consent for sexual activity and are in favour of sending people to jail for teenage sex will put their own sons and daughters under close surveillance and hand them over to the police if their sons have sexual affairs before 21 and daughters before 18. Their moral discipline will work only if they practice strict segregation between boys and girls. They should stop sending their children to co-ed schools or mixed social gatherings. They will need to confine daughters to the zenana and keep boys in the mardana section of the house. They will need to make sure that even brothers, sisters and close cousins do not ever get to spend time together except under the watchful eye of family elders because incestuous relations are more likely in situations where young persons are barred from interacting with outsiders of the opposite sex. I am unqualified to provide the endless list of do’s and don’ts for curbing adolescent sex. However, they can get valuable tips from Saudi Arabia and the Taliban. But then they should not be shocked if a good number of teenagers take to same sex relationships!

For me a marriage involving coercion is as unacceptable, as irresponsible, as uncaring sex—no matter what the age of the groom or bride, man or woman. Even in our shastras such a relationship is called “Paishacha Vivah” and treated as the lowest form of union. We need to provide culturally sensitive mechanisms, not the police danda, to help young people escape such marriages and discourage them from gravitating towards irresponsible loveless sex.

Factors that Help in Raising the Age of Marriage

As far as the desirability of raising the age of marriage is concerned, our own history as well as that of various other societies tells us that the following factors achieve this end far better than punitive measures.

►           A safe social environment with low crime rate so that people are not worried about the physical safety of their daughters.

►           Easy and universal access to quality education for both boys and girls.

►           Universal access to quality health care services, including safe contraception.

►           Easy access to economic opportunities such as new jobs, professions and entrepreneurial activities, especially for women.

Communities which have access to all of the above do not need any coercive law to marry their daughters late. Those who have been deprived of these facilities do not deserve to be locked up in jail. As for bringing about a change in cultural values and the social mindset, TV serials like Balika Vadhu are doing the job far better than feminist sermons or sultani farmaans.

Finally, let me make it clear that personally I would encourage young people to postpone sexual engagement till they are old enough to face its consequences including unwanted pregnancy, and likelihood of contracting sexual diseases.

Even at the risk of sounding old fashioned, I would urge young people to engage in sexual relations in the spirit of a sacred trust with their partners. Casual sex with unknown or little known persons is a very high risk pleasure, especially for women. Women who engage in it end up being messed up not just physically but also mentally and emotionally. But if young people do not listen to me, I certainly do not wish to see them terrorized and blackmailed by the police or sent to jail by the courts. Using the might of the coercive power of the Indian state to punish teenage sex is akin to using AK47s to kill little pigeons.

By Madhu Purnima Kishwar

(The author is Editor of Manushi where the article first appeared)

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