Why is a woman's sexual freedom taken for granted in India?

The age of consent should have nothing to do with age of marriage.

 |  5-minute read |   30-03-2017
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On March 17, academic Madhu Kishwar filed a writ petition in the Delhi High Court, challenging the amendments made to Indian rape laws in 2013 — the Criminal Law Amendment Act

The amendments brought in 2013, apart from expanding the definition of rape, raised the age of consent (the age at which someone can consent to sexual activity) from 16 to 18 years. Along with Kishwar, a woman and a man convicted for abetment (to rape) and rape respectively, in a case where a girl consented to sexual activity, are the co-petitioners.  

While women’s rights activists are up in arms against this writ petition there is little concern for the fact that raising the age of consent has eroded the rights of young people to experiment with any type of consensual sexual activity. 

The right to sexual freedom has always come second to concerns over violence against women. Emphasis on marriage has priority over emphasis on sexual freedoms. 

Women are expected to have sex only once they marry. The emphasis on virginity for women remains high and the goal of marriage as sacrosanct.  

For this reason, the age of marriage and the age of consent has always been roughly the same in India as far as girls are concerned. 

The age of consent (for girls) has never been lower than the age of marriage. For boys, the age of consent (18 years) is lower than the age of marriage (21 years).  The assumption is that while men may choose to be sexually active before marriage, for girls, the age of consent and the age of marriage should remain the same (or the age of consent should be higher) to prevent her from having sex before marriage at any cost. 

delhi-high-court_033017051304.jpg The ability to negotiate a marriage requires far more maturity than the ability to negotiate sex does.

In accordance with the Prohibition of Child Marriage Act, 2006, a woman can marry at the age of 18 while a man can marry at the age of 21. The age of consent is 18 for both men and women in accordance with the Protection of Children from Sexual Offences Act, 2012, and the amendments in 2013. 

Any form of sexual interaction (even kissing) between children below the age of 18 is an offence. The only exception is when a girl child is married and above the age of 15, where thereafter, she can as well be raped in the marriage and no criminal case can be filed against her husband. 

Certainly all of the above is unfair. Despite the unfairness – not just in our laws – but in a society which expects the woman to shift to her husband’s house, to be solely responsible for all care related work, and essentially, to keep sacrificing for her husband and in-laws, why do women themselves want to marry as soon as possible?

When discussing the need for a public interest litigation on making the age of marriage equal for men and women, the young women present at the discussion said that the age of marriage should be the same as the age of consent, that is, 18 years. 

The concern was that parents may oppose a marriage and hence the age of marriage may be low.   But what about parents who oppose casual sex and what if a young woman just wants a physical relationship without getting married? That is unthinkable.         

The radical position to take would be that of increasing the age of marriage to 21 for women and lowering the age of consent to 16 years. But that would give her 5 years of sexual freedom. Leave aside sexual freedom, it would also give her an opportunity to study further or work or enjoy her life without being burdened by the responsibilities that marriage brings. 

Legal changes in the age of consent and the age of marriage have remained more or less the same for girls, despite changes in what that particular age is.  In 1860, both the age of marriage and (age of) consent was 10 years.  This went up to 12 years for both in 1891.  In 1940, the age of consent was 16, but the age of marriage was 15.  In 2013, the age of consent changed to 18 and the age of marriage is also 18.  However, for men, the age of marriage is 21.

The ability to negotiate a marriage requires far more maturity than the ability to negotiate sex does.

Delayed marriages can help prevent domestic violence, unwanted pregnancies, increase the participation of women in the workforce and improve the mental and physical health of women.     

Lowering the age of consent to 16 years would limit the numbers of rape cases being filed by disgruntled parents against men who have consensual relations with their girlfriends. If a healthy environment were created where discussions on sexual activity could be undertaken with the youth we could encourage young women to assert themselves. 

We would be able to encourage younger women to either refuse pressure to have sex or to impart education on safe sexual activities. 

The age of consent should have nothing to do with the age of marriage. And yes, the age of consent is being used to file rape cases where both parties consented.

In terms of delinking marriage from sexual activity, the feminist movement in India still has a long way to go.

Also read: Mahmood Farooqui case: Why it's wrong to say India's rape laws are draconian

Writer

Gayatri Sharma Gayatri Sharma

The author is a lawyer working in the area of gender justice, development and human rights.

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