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DELHI: A court in the country’s capital stirred up controversy when it said on Monday that marriage with an underage girl was permissible under Indian Law.

The city court in Delhi said that provisions of the the Protection of Children from Sexual Offence (POCSO) Act suggested that where a physical relationship is undertaken with a minor girl – which is neither sexual assault nor has consent been taken by unlawful means – no offence can said to have been committed.

According to a Times of India report, the court made these observations while acquitting a 22-year-old native of West Bengal of charges of kidnapping and raping a 15-year-old girl, with whom he had eloped and later married.

The court said that since the girl had accompanied the youth of her own will, obstacles should not be put to destroy their happily married life.

According to the prosecution’s report, the girl’s mother had filed a complaint with the police on March 5 about her daughter going missing since February 26.

The accused was arrested on March 6, and the girl was recovered from his custody.

In a statement recorded before the magistrate, the girl said that she had willingly accompanied the youth to Kolkata, where they married in a temple and have been living together ever since.

The accused backed her statement in court, stating that they had married in Kalkota but denied having any physical relations with her.

Rejecting a plea from the police and Delhi Commission for Women that the POCSO Act prohibits minors from being involved in any kind of sexual activity, Additional Sessions Judge (ASJ) Darmesh Sharma declared that such an interpretation would mean that the body is state property until the age of 18.

He also added that such an interpretation would mean that "no individual below 18 years can be allowed to have pleasures associated with one's body."

However, Sharma emphasised on the need to spread awareness about unsafe sex and early marriage, and urged authorities to ensure that minors learn of the risks involved.

The POCSO Act, which came into force on November 14, 2012, defines all those aged under 18 years as children.

Disclosing the name of the child in the media or to any third party is punishable by up to a year.

The Act moreover prohibits the use of children for pornographic purposes, with punishment for such an offence ranging from five years to seven years, with the implementation of a heavy fine.

The Act also prohibits child trafficking for sexual purposes.

Moreover, assistance of any kind with the offence is also considered punishable under the POCSO Act.

However, such a marriage would be considered in contravention to international law.

UNICEF defines child marriages as a formal marriage or reunion before the age of 18. UN Women, moreover, define child marriage as a forced marraige before 18 years of age, because they believe children under 18 are incapable of giving their consent.

  • compiled by Zohra Ahmed

Comments (48) Closed

Rani Sharma Aug 26, 2013 03:55pm

The judge should be removed from office and barred from practicing law. his pension should be made invalid. The man was 22. he was an adult. When an adult marries a person below the age of 18 it is RAPE.

Abbas Aug 26, 2013 05:17pm

Paedophile will have a new haven.

Raja Aug 26, 2013 05:34pm

This is SICK!!! No wonder India's population is close to 1.5 billion and keep going higher.

khanm Aug 26, 2013 05:44pm

What is right and wrong, I don

Agha Ata Aug 26, 2013 06:01pm

If marriage is a physical relation and nothing else, then I think the honorable judge is right, otherwise. . . .

moiez Aug 26, 2013 06:10pm

If this was Muslim boy there would have been a thousand comments demonizing Islam and how Muslims are child molesters and these Arabs come to India and marry girls that are under age (with permission of their parents).

Harvinder Singh Aug 26, 2013 06:49pm

Wrongly Quoted. Court ruled that consensual sex with the minor (under 18) is not a crime. So there is no reference of marriage in this order. Sex & marriage are both separate.

ZA Aug 26, 2013 08:27pm

It is not easy to pinpoint the exact age of marriage for a girl. The 18 years rule is certainly arbitrary and does not agree with the biological needs of the human race. Any girl is marriageable and capable of having children when her menstruation starts. Since the dawn of history this was the norm understood and followed by our ancestors. No harm has ever been done by this methodology yet. Instead it promoted good morals in the society by providing the necessary outlet to the needs of the teens. Nowadays people frequently postpone marriage due to economic necessity. It should therefore not be attributed to any divine or moral rule. Let the girls and their parents make the decision of when to get married. Governments should never interfere with it.

azmat khan Aug 26, 2013 09:15pm

@Rani Sharma: Dear Rani, it is a special case where the girl is agreed.Also in that case she must be physically fit also for the relationship.I think this marriage can be permitted. But this should not be generalized.

Gooch Aug 26, 2013 09:27pm

This judge needs his head examined. May be the he himself is a paedophile . How come this judge can not interpret the definition of an Adult. Lawless india.

imran Aug 26, 2013 10:58pm

dawn showed the picture of 6 year old bride and the news is regarding 15 years old.

Malik Aug 26, 2013 11:01pm

I never could understood this 18 thing, more common in west dominated UN etc.,. In my opinion, when a person attains puberty, he/she is no more a child.

ZQ Aug 26, 2013 11:11pm

Being that it's India, I cannot but think the religious angle. Is this a Hindu-Muslim issue with the judge favoring Hindu?

Sikander Abbas Aug 26, 2013 11:16pm

@Rani Sharma: Says who? Western world? If they have reached the puberty it is better to marry them off rather than they have illiicit relation with each other for a long time. Forced sexual encounter at any age is called rape. The court said that since the girl had accompanied the youth of her own will, obstacles should not be put to destroy their happily married life. Whats wrong with that?

Rana Aug 27, 2013 12:01am

This is socially and morally very wrong. Let children be children and enjoy their childhood. Please.

rashid zaidi Aug 27, 2013 12:20am

@Rani Sharma: Who set that criteria of age 18? Biologically a girl is ready at puberty to be a mother. Marriage is a contract needed in society to be law abiding and to be able to raise a family. We have followed the west in all this age stuff. In days gone by joint families use to look after the young bride as a child, she was a mother at perhaps 14 was common in India. Today's world with its complexities is different, but doesn't have to do with age either, it is economics. School/university profession etc; make it so late to be a mother, at least in the large urban areas.

Syed nazir Aug 27, 2013 12:35am

Child marriage will destroy the childhood

Manish Desai Aug 27, 2013 12:36am

What nonsense! How can a minor be adjudged to have exercised free will for conjugal relations when in all other matters that minor requires parental or state consent. Yes Mr. Sharma, a child is not the "property" of the state prior to turning 18, but is the RESPONSIBILITY of the state. Please understand the difference.

I shudder to think what the repercussions of this decision might be.

Nad Aug 27, 2013 12:49am

Where are those indian who always come on this website and talk against muslims and Pakistan. Where r you now?? See what is happening in your shining india. First look inside urself and ur society. ur society is completely ruining by following western culture. u indians were in better condition, as a Society, before following western culture.

Parvez Aug 27, 2013 01:32am

The state may make as many laws as it wishes but as long as the level of poverty that keeps people suppressed, is not addressed and the general well-being of the people not improved matters like this will keep cropping up and to instutute more laws to curb this results in a cycle that goes nowhere.

Concern Aug 27, 2013 02:08am

I dont know the whole case, some time we just consider wester values too much. Its not age its the physical condition of person, if they have reach adult hood not by age or western standard then no problem otherwise its crime but in any case its result of these so called libral movies where whole object is love(SEX) between man and women. Only five comments imagne if this was Pakistan and muslim families were involved then it would have been heading in Time magazine and million comments tells how Islam is and How india is more moderen then Pakistan...

KHK Aug 27, 2013 02:56am

The Law needs to be amended.

N.Khan Aug 27, 2013 03:20am

So what do you folks make up of all those young teenage girls in the west who have a number of boyfriends and are very sexually active before the age of 18?? Nobody there makes a fuss, they promote safe sex practices instead of calling it rape!

Mathew George Aug 27, 2013 03:25am

All over the problems are women or money ??? Men should understand that .

madan Aug 27, 2013 05:19am

This is not any different from giving young underage Indian Muslim girls in marriage to Sheikhs of middle eastern countries.Such marriages should be legally prohibited.

Ram Narayanan Aug 27, 2013 05:23am

@Rani Sharma: I agree. Throw the judge in jail.

ivehadit Aug 27, 2013 06:29am

Clearly the Honorable Judge (and Agha Ata) is mistaken. Children do not have the awareness or the maturity to be "consensual" partners.

rightthinker27 Aug 27, 2013 06:56am

the judge should be forced out of position.

Iqbal Aug 27, 2013 07:54am

Ironic that a country founded on the principles of Islam is crying foul over underage marriage? Maybe you haven't read the hadiths?

M.Adeel Aug 27, 2013 08:04am

well I think it depends on what was the decision of the minor's family and what sort of physical relation or conditions this sort of marriage embodies. we cant just say its right or wrong i guess

Pradeep Aug 27, 2013 08:13am

Just because the West says, 18 is the right age, does not necessarily make it right for each situation. A girl of 15, if conscious enough to have eloped with a man, should have the right to make a judgment call on marriage if the decision is not made under duress as in when a Hindu girl is forced to marry a Muslim boy, that too after conversion. The state only has the duty to make sure that the decision was not forced, just like when in Asia, children are forced to marry by their parents.

Shoaib Khan Aug 27, 2013 10:51am

@Rani Sharma: But what about the girls and boys who have consensual sex even before they are 18 how would you define that,would love to hear comments

anon Aug 27, 2013 11:05am

I think this article has misinterpreted the court ruling. Another article on the judgement is given below.

abdul Aug 27, 2013 11:56am

misleading news allowed the judgement

anon Aug 27, 2013 12:14pm

The ruling is not being interpreted correctly. Readers please read the article yourself and then form your opinions. Link is given below

Ali Shah Aug 27, 2013 01:01pm

I don't see what the brouhaha is all about. The age of consent at 18 has been set arbitrarily in a lot of countries. A lot of countries have an age of consent of 16 in Europe and some of them have it even lower. Spain has an age of consent of 13 even now (there is a whole link on wikipedia about it). At the beginning of the 20th century the age of consent in most states of the United states would vary anywhere from 9 to 12 years of age and considering the conditions prevalent in a lot of places in India 15 years of age might be just fine socially. The judge might have taken a lot of things into consideration so it seems that it might be ironic that the judge is being portrayed as an ignoramus.

Cosmic Lion Aug 27, 2013 01:32pm

@Sikander Abbas " If they have reached the puberty it is better to marry them off rather than they have illiicit relation with each other for a long time"

What kind of attitude is this? The choice of partner belong to the boy and girl...what on earth is marry them off....

Sonal Aug 27, 2013 01:41pm

Whether I agree with the issue discussed in the article or not is a separate issue, but I find it intriguing that for three days in a row this story has been in the 'Top Stories' and 'Highlights' section of the Dawn. I haven't looked on Indian media, but I'm sure

Agnostic Aug 27, 2013 02:38pm

@N.Khan: What you state is not correct. Sex between minors is not punishable by law but sex between an underage (of consent) person and an person who is considered an adult for the purposes of consensual sex is punishable under 'statutory rape'. So, even in the "west" if a girl (or a boy) who is underage has even "consensual" sex with an adult (male/female), the latter could be charged with rape.

Ravi Ingale from Pune Aug 27, 2013 02:42pm

Minor?? what is age range?? 0-17.99 year?? Means if a man like 5-year girl or below than then He can have relation with her?? Non-sense judgement.

NotNeeded Aug 27, 2013 03:41pm

Why such a debate? We need to wake up to the reality that minors in India do indulge in sex consensually.. This ruling has just accepted this fact... Its having sex forcibly, be it with a minor or an adult, that anyway amounts to rape... So if both the parties are willing, why should the state interfere in the personal choices of young people...

ivehadit Aug 27, 2013 03:42pm

@Ali Shah: Stop looking for answers to the wrong questions. Lets join the civilized world on this. Children under 18 are just too young to have the maturity and are easily manipulated by predatory adults. Let's draw from our own culture on this question. We need to protect our sisters from abuse, not rationalize it and turn our heads away when it happens.

Manesh Desai had the best response to this.

khanm Aug 27, 2013 05:38pm

@Rani Sharma: Thank God you are not in Pakistan or else you would have been jail for the contempt of court

NASAH (USA) Aug 27, 2013 07:35pm

Socially the world has moved ahead -- India is regressing by the day.

illawarrior Aug 28, 2013 01:00pm

@NotNeeded: Not all minors are created equally. What if this girl was 12? or 9? or 6?

illawarrior Aug 28, 2013 01:02pm

@Rani Sharma: in most countries, it is legal to marry at 16, with parental consent. At 18 no parental consent is required.

illawarrior Aug 28, 2013 01:06pm

@ZA: No harm has ever been done by this? You must be joking! Many young girls, especially 10-14 have suffered horrendously from pregnancy, and related injuries such as fistula.

illawarrior Aug 28, 2013 01:12pm

@madan: In the west, if both male and female are under the age of consent it is not considered to be statutory rape.... only if one is an adult, and one is a child. In most "western" countries, the age of consent for sex is 16. The age for marriage without parental consent is 18.