http://www.lawyersclubindia.com/articles/Marriage-is-Sacred-Marital-Rape-is-not-anoffence-7237.

asp
http://www.lawfarm.in/in/question/under-age-lovers-elope---fir-against-boy-and-boysfamily

Consent, Age and Agency: reflections on the recent Delhi High Court judgement
on minors and marriage: Flavia Agnes
JUNE 12, 2012
This is a guest post by FLAVIA AGNES
I am responding to the sense of despair expressed by some womens groups
and more specifically to the press conference called by Bharatiya Muslim
Mahila Andolan (BMMA) to condemn the judgment of the Delhi High Court
which permitted a minor (almost 16-year old) girl to marry the man of her
choice rather than restore her back to her parental authority. In their
campaign for codification of Muslim law, BMMA has asked for laying down 18
as the minimum age of marriage for girls (and 21 for boys), the underlying
presumption being that all underage marriages must be declared as void.
Before we come up with a knee jerk response to the hype created by the media
and bite the bait, we need to have greater clarity on whose side we (feminists)
are batting in this confrontation between parental authority and the active
agency expressed by a teenaged girl. Also I wish to raise a connecting question
if the Muslim law was codified and minimum age for marriage was
stipulated, as has been done under the Hindu Marriage Act, would the High
Court have responded differently? Would the judges have sent the girl back to
her parental custody? And the last question could that have been construed
as a progressive ruling by us, those claiming to be feminists?
Rather than speculations, it would be more prudent to make out my case by
citing judgements of various High Courts pronounced in the last decade. The
facts of these cases were similar to the one that is being sort to be
condemned: A young girl had eloped with a boy of her choice. The parents of
the girl had filed a case of rape / kidnapping or a habeas corpus case against
the boy and had him arrested merely on the basis that the girl was below the
age of consent or age of marriage as the case may be. When the girl was
produced in court, she defied parental authority and deposed that she had
voluntarily eloped with the boy and had married him. Upholding her wishes,

the courts permitted the girl to accompany her husband / lover, rather than
restore her custody back to her parents. The only difference the parties were
Hindus and not Muslims as in the present case. Here is a glimpse of some of
these rulings:
In Jiten Bouri v State of West Bengal, [II (2003) DMC 774] Cal, the Calcutta
High Court while permitting the minor girl to join her husband, declared as
follows: Although the girl has not attained majority yet she has reached age of
discretion to understand her own welfare which is a paramount consideration
for grant of her custody. She may not have attained marriageable age as per the
provision of S.5 (3) of the Hindu Marriage Act but marriage in contravention of
age can neither be void nor voidable The girl has insisted that she wants to
join her husband and does not wish to return to her fathers place.
In Makemalla Sailoo v Superintendent of Police Nalgonda District , [II (2006)
DMC 4 AP], the Andhra Pradesh High Court held that although child marriage
is an offence under the Child Marriage Restraint Act, such marriages are not
void as per the provisions of both, the Child Marriage Restraint Act as well as
the Hindu Marriage Act.
In Manish Singh v. State, NCT Delh [I (2006) DMC 1], the Delhi High Court held
that marriages solemnized in contravention of the age are not void. The court
commented: If a girl of around 17 years runs away from her parents house to
save herself from their onslaught and joins her lover or runs away with him, it
is no offence either on the part of the girl or on the part of the boy. The girl
had deposed that she had married out of her own will and was desirous of
living with her husband. The court ruled that once a girl or a boy attains the
age of discretion and chooses a life partner, the marriage cannot be nullified on
the ground of minority and that it is not an offence if a minor girl elopes and
gets married against the wishes of her parents.
In Sunil Kumar v. State, NCT Delhi [I (2007) DMC 786] wherein the father had
confined the girl illegally, it was held: If a girl of around 17 years runs away
from her parents house to save herself from their onslaught and joins her lover
or runs away with him, it is no offence either on the part of the girl or on the
part of the boy. The girl was not willing to return to her parents, who were not
amenable to any reconciliation and wished to sever all relationship with her.
The minor girl was permitted to live with her husband.

In Kokkula Suresh v. State of Andhra Pradesh [I (2009) DMC 646], the High
Court reaffirmed that the marriage of a minor girl below18 years is not a
nullity under the Hindu Marriage Act and the father cannot claim her custody.
In Ashok Kumar v. State [I (2009) DMC 120], the Punjab and Haryana High
Court commented that couples performing love marriage are chased by police
and the relatives, often accompanied by musclemen and cases of rape and
abduction are registered against the boy. At times the couple faces the threat of
being killed and such killings are termed as honor killings.
All these marriages were termed as elopement marriages and hence we need
to examine this term which is used for marriages contracted without the
consent of the girls parents. At times the girls are below the permissible age of
marriage, and at other, they are projected as minors by their parents in order
to invoke the state power by using the provisions of the Child Marriage
Restraint Act (CMRA). The discussion on elopement marriages bring to the fore
ways in which multiple social subordinationscaste, community, region,
religionintersect with patriarchy in order to hone in the sexual choices of
defiant young women within established social mores. Women who exercise
active agency to defy convention pose a threat to the established social order
and hence are confined by reframing consent itself. In this discourse,
consent assumes a different dimension and gets embedded in assumptions
about rational choice and parental authority, rather than choices made by
women themselves.
Hence judgements such as the one discussed above as well as the judgement
which is sought to be condemned, which restrain the police from performing
arbitrary actions such as forcing women into the protective custody of the state
or confining them back to parental authority, serve as a benchmark for a
liberal interpretation of constitutional safeguards of personal liberty and
individual freedom.
The provisions of the seemingly progressive CMRA come to the aid of parents
to tame defiant young women, prevent voluntary marriages and augment
patriarchal power than to pose a challenge to it. When child marriages are
performed by families and communities, the provisions of this statute are
seldom invoked. Many a times a girl who is restored to parental custody is
married off, while is still a minor, against her wishes, to the man of the parents
choice. The patriarchal bastions are too strong and well fortified for a modernist
feminist discourse to enter and change social mores through legal dictates.

The only sphere in which these provisions come into play is during elopement
marriages. They bring into sharp focus the vagaries of the term, consent. For
the family and state authorities, lack of age becomes synonymous with lack of
agency to express sexual desire and bodily pleasure.
While this is problematic, even more problematic is the way in which a certain
kind of feminist discourse engages with notions of age, agency and consent
when there is a rupture between these terms. This raises some discomforting
challenges to the feminist movement. Hence we need to address the following
questions:
Firstly, is it possible to place consent on a superior plane when there is a
disjuncture between age and consent invoking the notion of agency which
gets operational during elopement marriages? Secondly, does the response of a
conservative institution such as the judiciary tends to be more nuanced and
pro-women than the feminist demand for declaring all such marriages as void
when such marriages contravene the stipulation of age despite a visible display
of consent and agency? And thirdly, will invoking the Islamic notion of age of
discretion rather than merely age of majority or age of marriage aid the
defiant young women who challenge patriarchal authority, while exercising
unconventional sexual choices?
When we examine the agency which a young girl expresses in an elopement
marriage, the legal provision becomes a weapon to control sexuality and curb
marriages of choice. Even though the criminal provisions regarding kidnapping
and statutory rape appear to be protecting minor girls, these provisions are
aimed at augmenting the patriarchal parental power over the minor girl. There
are no exceptions in the laws on abduction and kidnapping that allow a minor
to opt out of guardianship, or to leave her parental home on grounds of
domestic violence, child sexual abuse or abuse of parental authority. The use
(and abuse) of police power, at the instance of parents with regard to
marriages of choice, works in direct contrast to womens autonomy, agency and
free will.
At times, judges, with a concern for social justice, have resolved the issue by
resorting to basic principles of human rights in order to save the minor girls
from the wrath of their parents and from institutionalization in state-run
protective homes. The only way they could do so was by upholding the validity
of these marriages by bestowing on the minor girls an agency (by invoking the

premise of age of discretion) and by distancing the notion of age from

consent or agency.
On examining these judgments through the prism of womens rights, could
these judicial interventions in aid of minor girls be termed as regressive and
the demand by womens groups to declare these marriages as null and void be
termed progressive? Could the curbing of the freedom of these minor girls to
express their sexual choices by their natal families with the aid of the mighty
power of the state within a sexually repressive society be termed as a
progressive intervention and a challenge to patriarchy? The recent legislation
passed by the Parliament on Child Sexual Assault, raising the age of consent to
sexual intercourse from 16 to 18 will further deteriorate the situation and
render young girls (and boys) even more vulnerable to parental and state power
when they express their sexuality and make unconventional sexual choices
and result in even higher level of moral policing by the state.
Invoking the notion of age of discretion which the courts had done even while
validating marriages of minor Hindu girls who had eloped, did not evoke a
similar controversy as is being done at present. Ironically, this is being done
now only because the parties concerned are Muslims. It appears that the judge
erred in applying a concept of Islamic law to Muslims but not while applying it
to non-Muslims. The extremely provocative manner in which this judgement
has been projected by the media, warrants that we do not respond in an
expected knee jerk manner and lend fuel to the age old right wing demand for
the enforcement of a uniform civil code. At such moments, it is important for
us to be clear on whose side we are batting.
Perhaps bringing Mathura back into this debate will help to clear the muddy
waters. Mathura, a young 16 year old, illiterate, tribal girl, who had eloped,
was brought to the police station on a complaint filed by her brother. After
interrogation, she was raped by policemen on duty. The controversial Supreme
Court ruling which acquitted the policemen on the premise that she was a
woman of lose moral character became the catalyst for the womens movement
in India in the late seventies. For many of us, Mathura continues to be the
touch stone for testing our feminist sensibilities. This helps me to make my
point that we need to be sensitive to the multiple levels of vulnerabilities that
teen aged girls who elope with their boyfriends or make other unconventional
sexual choices suffer as they negotiate multiple levels of marginalizations.

Here the voice of the feminist movement must lend credence to the claims of
the weak against the might of status quo-ist institutional authorities. The
agency exercised by a young teen aged girl and her voice of protest against the
dictates of patriarchy needs articulation and support. The claims of feminist
jurisprudence must essentially lie within this complex tapestry.
Before concluding, lest I am misunderstood, let me clarify that I am not
advocating that all 15 year olds must drop out of school, elope with their
boyfriends and marry them and then they will live happily ever after as per
the popular Hindi movie formula. All that I am saying is that the Child
Marriage Restraint Act which was enacted in1929 has not worked as it is
almost impossible to penetrate the family, caste and community bastion and
prevent child marriages as is perceived by some feminist groups. In todays
society, child marriage has become a class issue as opposed to the manner in
which it was used in the nineteenth century reformist debates within the
context of Brahminical patriarchy. We have seen the age of marriage gradually
rising when living standards rise and families have more options for education
and skill training of their daughters.
The fear of leaving a young girl unattended at home who may become a victim
of rape drives most poor families to marry their daughters young and hone in
their sexuality so that they do not to have to endure the stigma of rape and
marrying off a sullied and non-virgin daughter. We need to work towards
creating more secure and women friendly societies where daughters can be
raised with love, care and affection so that teen marriage is not the only choice
for them. At another level, there need to be more open spaces within families to
discuss sex and sexual choices and challenge the premium placed on chastity
and virginity within arranged marriages. Only when the sexually repressive
atmosphere within which we raise our children changes will the girls and boys
not feel the need to elope and marry in order to give into their natural sexual
instincts and will be in a position to make more responsible sexual and life
choices.