Inconsistencies in Age of consent in multiple laws has jeopardized the child protection regime

‘Tough to bring sex in child marriage on a par with age of consent’

Written by Utkarsh Anand | New Delhi | April 17, 2014 1:23 am

In India, a person can be booked for rape if he indulges in a sexual relation with a woman less than 18 years of age. But he may marry at 12, or at an even younger age, and can validly consummate the marriage at 15. For, what relevant laws provide for are:

• Minimum age for a valid marriage: 18 years
• Minimum age at which one can marry and make it valid on turning 18: As low as one likes
• Minimum age at which a couple, married or otherwise, can have sex: 18 years
• Minimum age at which a couple can have sex when married as children: 15 years

This apparent contradiction in the law on the age of consent may have fettered the battle against child marriage in India — having more child brides than any other nation in the world — but the government has chosen to concede to the “social realities of the nation”.

The Centre has told the Supreme Court that it was deemed “not appropriate and practical” to remove this anomaly since there were at least 23 million child brides in India, who constitute nearly half of all child brides in the world. An attempt to bring sex in child marriages on a par with age of consent as others will lead to various “social tensions”, it said.

   

Significantly, in October last, the government had refused to sign the first-ever global resolution on early and forced marriage of children, led by the UN which was supported by 107 countries. India had refused to sponsor the measure, stating that the resolution’s definition of early marriage was vague.

Now, responding to a PIL that demanded removal of this disparity on age of consent, the Ministry of Home Affairs (MHA) conceded that while it was making efforts “in a discreet manner”, to prohibit child marriage, making the age of consent uniformly as 18 would throw up several other issues.

The PIL by organisation ‘Independent Thought’ has emphasised that Exception 2 to Section 375 of the IPC allows sexual relationship with a married girl at the age of 15 whereas under all the others laws, a person below the age of 18 is a child.

This contradiction in law, the PIL said, encouraged sexual relationship with a girl child under 18 because she is married.

However, the MHA said its stand on the issue of marital rape was “pragmatic” since marriage, being a social institution, is the bedrock of the society and ought to be protected.

The affidavit mentions stringency of the law on prohibiting child marriage but waters it down by saying: “It is a fact that child marriages do take place in India. The social, economic and educational developments in the country is still uneven and child marriages are taking place.”

The court will take up the government’s affidavit on Thursday.

Source: Indian Express

Now some "Action Plan" to set things right at Asha Kiran

Dear Friends,

This is subsequent to my earlier posts on continued deaths of inmates at Asha Kiran - A Govt. Run home for Intellectually challenged persons. Now after several deaths in a row and mass agitation by Civil Society, finally Delhi Government seems to have woken up to the mess that has been created at the Govt. run home for the Intellectually Challenged persons. This indicates that persons with disabilities with no family support are not the priority of the Government. 

I have three major objections to this process:

(a)  It is surprising to know that no civil society organisations/stakeholders were invited to the meeting.
(b)  Secondly appointing contractual employees in these centres will not improve the conditions unless they are given decent wages.
(c) Thirdly though the Delhi Govt has admitted lapses on the part of authorities, there is no criminal action on the persons responsible indicating how Delhi Govt. values lives of persons with disabilities!
(d) The whole process of managing the action plan seems to be medically oriented with Doctors treating the patients! There is no rehabilitation professional involvement nor is any thing being discussed to ensure their social political rights, Right to education for children under 18 years, vocational training etc.

I wonder whether the thought process in the political class has undergone any change in light of  India proudly signing UNCRPD ! There is no doubt that  involving civil society, National Trust and Rehabilitation Professionals will give more credibility to the Government's action plan and the Government should seriously consider this for in absence of this and given the past expereince, we might see the condition of these homes "back to Square one"!

Here is the coverage from Zee News and Times of India on the subject.

regards
SC Vashishth, Advocate


Delhi Govt. Brings Action Plan : Zee News

New Delhi: Under attack for a spate of deaths at an observation home run by it for the mentally challenged, Delhi Government on Wednesday came out with a time-bound action plan to ensure proper care and medical facilities for the inmates.


As per the action plan, some of the over 700 inmates at the Asha Kiran Home would be transferred to three buildings within next two months to decongest the existing home so that each mentally challenged child get proper care and attention.

The Government also decided to deploy well-equipped ambulances and upgrade other infrastructure at the home which witnessed 26 deaths in the last five months. Two inmates had died last week while one breathed his last on Monday.

The action plan was finalised at a high-level meeting, chaired by Chief Minister Sheila Dikshit and attended by Finance Minister A K Walia, Social Welfare Minister Mangat Ram Singhal, Health Minister Kiran Walia and Chief Secretary Rakesh Mehta, besides several top officials.

The meeting decided to initiate a series of short-term and long-term measures to overcome existing deficiencies at the home. The home is being maintained by the Social Welfare department.

Yesterday, Dikshit had admitted lapses on the part of authorities and said over 700 inmates were staying at the home against the sanctioned strength of 300.

In the meeting, it was also decided to appoint more attendants on contract basis to ensure proper care of the children.

"To overcome the situation of over-crowding in the Home, it was decided to shift inmates to three other existing buildings, which are being upgraded," an official said.

He said an expert team of the doctors will guide the authorities to shift the inmates. The meeting also decided to appoint separate administrators for the new homes.

Further, a special ward at Ambedkar Hospital is being readied to provide treatment to those inmates who may require hospitalisation, the official said.

Dikshit also instructed the health department to deploy three well-equipped ambulances for the inmates. Apart from this, mental health experts will be visiting the Home on regular interval for check-up of the inmates.

The Chief Minister also instructed authorities to conduct review of all existing homes so that no such incident takes place in future.

Walia and Singhal had visited the home on Monday and suggested a series of measures, including upgrading the shelter to a mini-hospital.
PTI



Finally, Asha Kiran inmates to be shifted : Times of India


TNN, Feb 18, 2010, 12.46am IST
NEW DELHI: After years of neglect and many deaths, the government has finally spelt out relief for inmates of the Asha Kiran home for the mentally challenged in Rohini. What was being proposed for over a decade is now being promised by chief minister Sheila Dikshit who has set a deadline to decongest the overcrowded home by shifting its inmates to three other buildings. One building in Bindapur and two others in rural areas are being upgraded for the purpose. The home as of now has space for 350 but it houses over 700 inmates.


Shifting will be undertaken on the basis of the gravity of the inmates' mental retardation.

The segregation will also be need-based. An expert team of doctors will guide the segregation process. There will be a separate administrator for the three buildings who will be fully responsible for the running of the home and will be accountable for all actions, CM Sheila Dikshit made it clear at a high level meeting on Wednesday.

Further, a special ward at Dr Ambedkar Hospital is being prepared to provide treatment to those inmates who may need hospitalization. The chief minister expressed confidence that there will be a positive change at Asha Kiran within two months.

The meeting, chaired by the CM, was attended by Finance Minister Dr AK Walia, Social Welfare Minister Mangat Ram Singhal, Health Minister Kiran Walia, Chief Secretary Rakesh Mehta, Principal Secretary (Finance) JP Singh, Secretary (Social Welfare) Manoj Parida, Director (IHBAS) and other senior officers of concerned departments.

Dikshit instructed officials to conduct a review of all existing homes so that no untoward incident takes place in future. To cope with the extreme shortage of staff, it was decided to employ attendants on a contractual basis.

Dikshit also said three well-equipped ambulances will be deployed at the home. The ambulances will act like mobile hospitals. Experts from Institute of Human Behaviour and Allied Sciences will visit Asha Kiran regularly.

Dear Friends,

Our archaic laws still exists while new ones keep coming but there is hardly an attempt to scrap or amend the old laws. This often leads to situations like this. In the instant case while a family wanted to adopt a girl child under the new child friendly legislation called Juvenile Justice (Care and Protection of Children) Act of 2000 but they couldn't because the archaic law on adoption named Hindu Adoption and Maintenance Act came in the way.

The family had to approach the court to get the matter settled but why can't such exercise be carried out while notifying the new law that no relevant existing law is in contradiction of the law, so that a process to amend /scrap the old law could be taken then and there. Well, in the instant case, the Hon'ble Supreme court finally held that the New law will override the old provisions of Hindu Adoption and Maintenance Act.

Also it is all the more important to do this in view of the paradigm shift that we see in the status of SC/ST, gays, HIV patients, the women, the disabled, the elderly and those who were not in the mainstream till now, with the introduction of new laws, signing of new international treaties, landmark judgements from the Supreme Court of India etc.

In fact, a detailed exercise is needed by the Union Ministry of Law and also by the Law Ministries in various Indian States to ensure that no existing laws/rules/practices/norms etc are in contradiction the new socio-economic and legal order based on equal rights and non-discrimination.

regards

SC Vashishth, Advocate

To read from source click here

MUMBAI: Hindus who have always wanted to adopt a girl even though they already have a daughter can now do just that. The Hindu adoption law prohibits same gender adoptions but, in a landmark judgment this week, the Bombay High Court has thrown open the legal doors to allow Hindus adopt a child of the same gender as their existing one.

In the verdict, the HC allowed a recent petition by Mumbai-based actor couple (names withheld on request) to be legally declared as adoptive parents of a girl they had taken in as their ward over four years ago under the Juvenile Justice Act.

The couple had a two-year-old biological daughter of their own when they sought and were allowed by the court in 2005 to become guardians of a year-old destitute baby girl. Stating that courts must harmonise personal laws with secular legislation, Justice D Y Chandrachud held the Juvenile Justice (Care and Protection of Children) Act of 2000 — a secular law enabling rehabilitation of abandoned children through adoption — would prevail over the Hindu Adoption and Maintenance Act (Hama), a personal law that has placed certain restrictions on adoption.

Justice Chandrachud took up the Pathaks’ issue seriously as it “involved the larger issue of encouraging adoption and giving an abandoned child a chance in life’’. He looked closely at adoption laws under their various avtars and at the Indian Constitution as well as the Convention on the Rights of the Child which India had ratified in 1992 before ruling that “adoption is a facet of right to life and that freedom and dignity are the foremost values of governance in civil society and freedom and dignity of the young must count above all’’.

This was the first time the court was interpreting provisions of two conflicting legal provisions on adoption; it had a 54-year-old Hindu Adoption Act and the more progressive nine-year-old Juvenile Justice Act, which introduced adoption of abandoned children and gave it a wider platform. The Hindu law places stringent conditions and prohibits adoption of a child of the same gender where an adoptive father or mother already have a child living at that time.

For instance, if the adoption is of a daughter the adoptive parent must not have a Hindu daughter or a son’s daughter living at the time of adoption. Conditions are stricter while adopting a son and adoptive parents must not have a Hindu son, a grandson or even a great-grandson alive.

The Juvenile Justice Act, a countrywide beneficial social law, came in 2000 and introduced a ‘child-friendly’ approach towards adoption “in the interest of ultimate rehabilitation of a narrow sub-class of children who are orphaned, abandoned or surrendered’’.

The HC, after hearing advocate Vishal Kanade for Pathak, held: “Right to life includes rights of parents and of individuals, women and men, who wish to adopt to give meaning to their lives on the one hand and, on the other hand, is the right of abandoned children who are in need of special care and protection."