Right to sexuality of a person is systematically dismantled in child marriage: Supreme Court

New Delhi: The Supreme Court on Friday said in the instance of child marriage, the right to sexuality of a person is systematically dismantled, and the assault starts with the sexualisation of the child at a tender age. 

In a judgment, a bench of CJI D Y Chandrachud and Justices J B Pardiwala and Manoj Misra emphasised on the critical role of free and informed consent in marriage, particularly regarding child marriage.

The bench said child marriage deprives children of their agency, autonomy and right to fully develop and enjoy their childhood. 

“The right to free choice and autonomy in marriage encompasses three fundamental rights: the right to free and informed consent, the right against gender-based violence, and the right to sexual autonomy. These interconnected rights form the foundation for ensuring that marriage is a consensual partnership rather than a coercive arrangement, particularly when addressing the issue of child marriage," the court said.

The CJI, who authored the judgment on behalf of the bench, said for women to exercise full, free, and informed consent as outlined in Article 16(1)(b) of Convention on the Elimination of All Forms of Discrimination against Women 1979 (CEDAW), they must possess the cognitive capacity to comprehend the meaning and responsibilities associated with marriage.

“Despite the enactment of the Prohibition of Child Marriage Act, the abysmal number of prosecutions and the continued existence of the practice violates the essence of this court’s holding. These rights and values are equally iterated in international law to which India owes an obligation," the bench said.

The CJI said when the woman is married as a child, her education is arrested in place during a pivotal period of brain development, and the minority of a woman’s age at the time of her marriage has a heightened impact on her education. 

“The right to primary education is a fundamental right expressly enshrined under Article 21-A," the bench said.

The bench said duty of the State corresponds to the right to development of a child which is traceable to Articles 14, 19(1)(a), 21 and 15, and the right comprehends the ability of a child to exercise free speech, express authenticity and live a life of liberty and dignity.

The CJI said patriarchy offends the most basic rights of people by creating a hierarchy-based order of subjugation and static power distribution in society, and when an institution of patriarchy operates, it never denies rights in a unidimensional way. “In the instance of child marriage, the right to sexuality of a person is systematically dismantled. The assault starts with the sexualisation of the child at a tender age," the CJI said.

The bench said marrying in childhood has the effect of objectifying the child and the practice of child marriage imposes mature burdens on children who are not physically or mentally prepared to comprehend the significance of marriage.

“When women are forced into marriages to protect their ‘chastity’ and ‘virginity’ she is denied her right to sexuality, bodily autonomy and the freedom to make choices for herself as she sees fit," the bench said.

“The minor is then boxed with the expectation of compulsory heterosexuality. The ability of a person to experience sexual desire organically and to navigate their choice in intimacy is effaced at the altar of tradition and social norm. At an age which must be instructed by the ability to make mistakes and learn from life experiences, children are stunted and forcibly fit into boxes,” the CJI added.