The Indian government had defended the controversial exception clause, stating that although the practice of child marriage is illegal, "the harsh reality is that 20 to 30 percent of female children below the age of 18 years got married in total violation of PCMA," according to the ruling.
The country's top court quashed that stance, describing sex with an underage wife as a "heinous crime which also violates the bodily integrity of a girl child, causes trauma and sometimes destroys her freedom of reproductive choice." According to UNICEF, around one in four married Indian girls and women between the ages of 15-19 have suffered physical abuse at the hands of their husband. As underage brides, many also become young mothers and suffer complications during pregnancy and childbirth. "They are so young and because of that, they do not have the power or the authority to do anything. They cannot speak out against violence, they do not have the capacity to protect their own reproductive rights. This is part of their right to liberty and dignity," said Kothari.
A very toothless law
The reasons behind child marriage vary from region, caste and religion. In addition, the perception of daughters as a burden for poorer, lesser educated families often results in underage marriages. But there are fewer taking place now. The percentage of women aged 20-24 who were married before 18 dropped from 47 percent in 2005/2006 to 27 per cent in 2015/2016, according to UNICEF. The Supreme Court's reading down of Exception 2 and bringing it in line with the Constitution and other laws will force people to "wake up," according to Kothari, who is also the Executive Director of the Center for Law and Policy Research.
"Although the PCMA prohibits marriages under 18, it doesn't make those marriages invalid. You have to go to a court to invalidate them. It's a very toothless law but the criminal sanctions are strong. If you are now charged with rape, then you can actually go to prison. The numbers (of child marriages) will come down. It's not going to be overnight but it will seriously help the cause."