The Supreme Court judgment on Wednesday that sexual intercourse by a man with his minor wife, aged below 18, with or without her consent, amounts to rape will have an immediate effect, legal experts say.

Those who are already in a child marriage will be forced to live separately till the girl turns 18.

“The presumption when a man and a woman are living together is that they are not praying. The impact of the judgment for those who are in child marriage will be to immediately live separately till the girl reaches the age of 18. They will walk the tight rope. In future, the judgment acts as a deterrent against child marriage because it directly exposes the husband to criminal prosecution for rape. The judgment has the effect of completely eradicating child marriage,” senior advocate Vishwanathan K.V. said.

When asked whether the judgment will affect the Muslim Personal Law, which allows marriage between the age of 15 and 18, he said: “criminal law is applicable across the board. There is no exception to personal laws.”

Senior advocate Indira Jaising also agreed that personal laws would not come in the way of the judgment as the Indian Penal Code is applicable across religions.

‘Progressive verdict’

Ms. Jaising called the verdict “progressive.” She said the “logical outcome” of the judgment was to make child marriages automatically void.

As of now, a child marriage is null and void only if the child was deceived out of the custody of the guardian, forced or compelled, sold into marriage or trafficked.

Section 3 of the Prohibition of Child Marriage Act (PCMA) provides that a child marriage is voidable at the option of any one of the parties to the child marriage. In fact, this Section puts the burden on the child bride or groom to seek a declaration of nullity from a court of law.

Ms. Jaising said the judgment addressed the issue of a husband’s “captive access” of his minor wife.

She, however, said the judgment should not be used to criminalise the “experimentalism of the body” seen among adolescents who are aged between 15 and 18.

Supreme Court advocate Aishwarya Bhati also agreed that declaration of child marriages as void or a complete ban on child marriage is the “necessary corollary” to this judgment. She said it had to be seen whether the government would use this verdict as an opportunity to remove the “stigma and shame of child marriage” on the nation.

Harassment by third parties

However, Ms. Bhati expressed certain apprehensions about whether the judgment had safeguarded couples from harassment by third parties. “Third parties should not be allowed to complain, like in the case of adultery. Only the aggrieved person, that is the child bride, should be allowed to lodge the complaint with the police,” Ms. Bhati said.

But Mr. Vishwanathan said third parties can indeed bring to the notice of the police about people living in child marriage.

Advocate Prashant Bhushan said the judgment was correct and harmonised the IPC with other anti-child abuse laws like POCSO.

“The judgment reinforces the fact recognised by other laws that a child is not in a position to grant or not grant consent,” he said.