ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846
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Child Marriage as Trafficking?

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The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018, drafted by the Ministry of Women and Child Development, was passed by the Lok Sabha in July 2018. While the bill is a much required attempt to move away from the criminal justice framework to a victim-centric model, it contains several gaps. These include unclear provisions relating to repatriation of victims (Section 26 [2] allows for deportation of foreign victims under the Foreigners Act, 1946), penalisation of victims of trafficking who perpet­rate offences not punishable with death, imprisonment for life, or imprisonment for 10 years (Section 45 of the bill), and differentiating between aggravated and non-aggravated forms of human trafficking for no apparent reasonable reasons (Section 31). Most of the gaps have been addressed by Tripti Tandon in “India’s Trafficking Bill 2018 Is Neither Clear Nor Comprehensive” (EPW Engage, Vol 53, No 28).

One of the issues not addressed is the conflation between child marriage and human trafficking that would result if the bill is enacted. A form of aggravated trafficking created under the bill (Section 31 [v]) is where whoever “for the purpose of marriage or under the pretext of marriage trafficks a woman or child after marriage.” As the definition of trafficking includes “sexual exploitation” with or without consent (Section 370 of the Indian Penal Code), and it is commonly understood that marriage would lead to sexual activity which is per se exploitation of the child, the bill effectively equates many child marriages with human trafficking. Due to the system of patrilocality, girls are transferred to the house of the groom following marriage. This completes the act of human trafficking, with parents, family members, or an entire village being the “traffickers.”

Child marriages are rampant in India. According to the National Family Health Survey (2015–16), 26.8% of women in India were married before the age of 18. The actual figure is likely to be higher due to non-reporting. This translates into millions of girls whose education has been disrupted, and who have been pushed into undertaking household activities, including reproductive work, before they had a chance to work, make friends, or acquire the confidence required in negotiating any intimate relationship.

When parents push their daughters into early and forced marriages, they are performing a criminal act. Vulnerable children, women (and men) are often trafficked by family members, which is one of the reasons for low conviction rates. On the one hand, the stigma of filing cases and penalising the natal family for perpetrating gender-based violence needs to go.

On the other hand, this provision in the trafficking bill may well be used to criminalise young adult men who enter into consensual self-arranged marriages with girls close to the age of maturity. As consent is immaterial both in the case of human trafficking and in the case of adolescent sexual activity, families are free to press charges against young men who elope with their daughters, who dared to exercise choice in the matter of choosing their own partner.

In deciding what quantum of punishment family members must be awarded for perpetrating violence upon their children, a practical approach needs to be taken. The rights of consenting young adults should not be jeopardised in the process of attempting to end human trafficking and child marriage. For this reason alone, human trafficking and child marriage should not be equated with each other.

Gayatri Sharma

New Delhi

Updated On : 2nd Nov, 2018

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