Failing our girls
India's landmark Supreme Court ruling outlawing marital rape of girls below 18 is yet another reminder of just how far behind Bangladesh is in the fight against child marriage
It is often said that if you want to know the truth about the world, ask a child. Perhaps, it's an unconditioned mind that lets a child see things for what they really are. And perhaps, it's this unfiltered view of the world that helps them reduce disturbing realities into simple truths so easily.
This sudden realisation dawned on me thanks to a colleague who pointed out the effortlessness with which a teenager captured the irrationality of child marriage in Bangladesh: "A child should be born to a mother, not to another child."
These are the words of Tuli Debnath, a teenage girl from Mymensingh, who, along with five other schoolgirls, were honoured this Wednesday for their courageous efforts to prevent child marriages in their hometowns. Tuli—who works for a seven-member group called Ghas Foring to prevent child marriages—essentially reinforced the fact that a child cannot be a mother and a mother cannot be a child.
In a strange coincidence, on the same day that Tuli uttered this indisputable truth, neighbouring India marked a historic day in the fight against child marriage. The top court in India ruled that sex with an underage wife (below 18 years of age), despite consent, constitutes rape. The landmark ruling struck down Exception 2 to Section 375 of the Indian Penal Code (IPC) which says that sexual intercourse between a man and his wife—between 15 and 18 years of age—is not rape. The NGO Independent Thought had filed a Public Interest Litigation (PIL) challenging the exception clause since it violates various articles of the Indian Constitution and is directly in conflict with the age of consent which is 18. A Bench of Justices Madan B Lokur and Deepak Gupta observed, "Human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance."
"This sudden realisation dawned on me thanks to a colleague who pointed out the effortlessness with which a teenager captured the irrationality of child marriage in Bangladesh: "A child should be born to a mother, not to another child."
This is a huge victory for a country which currently has the highest number of child brides in the world. Many consider this to be an important step towards eradicating child marriage, even though it took 77 years to rewrite an abhorrent law. By criminalising sexual intercourse between a husband and an underage wife, the top court's ruling killed two birds with one stone: First, by directly addressing marital rape of a child below 18 and second, by indirectly being a "trigger to declaring child marriage void ab initio". (The Supreme Court however made it clear that it had not touched the issue of marital rape of a woman above 18.)
This is in sharp contrast to the regressive step that Bangladesh took not too long ago by passing a law that basically "reduces minimum marital age to zero". A shocking step backward for a country that has the highest rate of child marriage of girls under the age of 15. The far-reaching effects of the "special provision" clause in the Child Marriage Restraint Bill 2017 have been highlighted over and over again, one of which is the failure to recognise statutory rape within a marriage—the polar opposite of what India's Supreme Court ruling has achieved.
Apart from the major offence of essentially legitimising statutory rape, the retrogressive bill's proponents in our country have put forth quite a few fallacious arguments which fall flat once juxtaposed against the observations made in India's landmark judgment.
Indian SC Justice Madan B Lokur said: "The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. This artificial distinction is arbitrary and discriminatory and is definitely not in the interest of the girl child."
There are two clear messages here: First, a girl child is a child regardless of whether she is married or not. The cloak of marriage does not take away from the fact that sexual intercourse between the husband and his minor wife violates her bodily integrity and amounts to rape. And Section 375(2) of the IPC which did not criminalise non-consensual sex (not that it can ever be "consensual") between the girl child and her husband had completely failed to recognise this fact. Second, by explicitly upholding the "interest of the girl child", the SC made it clear that the interests of a child should be given precedence over societal traditions—again, a 180-degree turnaround from the defence of the "special provisions" clause put forward by the Bangladesh government who argued that the clause would protect the "honour" of girls who have become pregnant out of wedlock, never mind whether the pregnancy is a result of rape. Instead of criminalising sexual intercourse with a girl child below the legal marriageable age (18), this legal loophole would allow rapists to marry their victims and prolong the cycle of physical and mental abuse of the girl child. The problem with the argument of the Bangladesh government boils down to the fact that far from breaking the stigma attached to a girl child being pregnant out of wedlock and addressing the more disturbing aspect of rape, it has itself fallen victim to the same victim-shaming mentality.
At the heart of this matter is how you interpret the "best interests" of the girl child. And its interpretation as the special provisions clause in Bangladesh's new child marriage bill indicates stands in stark contrast to that of India's historic SC ruling. It really makes you wonder why the Bangladesh government has failed to be in tune with the judgment of the highest court of the land in India when Tuli, a teenage girl, is intuitive enough to recognise this simple fact.
Nahela Nowshin is a member of the editorial team at The Daily Star.