If you marry a girl who is under the age of 18, probably because you cannot wait for her to attain the universally recognised age, you still have to wait for her after the marriage to grow before you can have sex with her.
The law is applicable to Indians whose Supreme Court has struck down a law allowing men to have sex with children as young as 15, provided the pair are married.
The court however fell short of annulling an exception in the country’s criminal law that permits rape in marriage, which is currently the subject of separate legal proceedings.
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A two-judge bench of India’s highest court was responding to a public interest lawsuit arguing that the exception to sexual assault laws for “a man with his own wife, his wife not being under 15 years of age” encouraged child marriage.
Indian child protection laws already prohibit an adult from having sex with someone below the age of 18.
But its criminal code had included an exception for married couples, in a country where around 46% of women aged between 18 and 29 were married before reaching legal adulthood.
Justice Madan Lokur said in his decision that, “We are left with absolutely no other option but to harmonise the system of laws relating to children.”
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An analysis of the most recent national census by the data journalism initiative India Spend estimated that nearly 12 million Indian children under the age of 10 were married. The majority were girls from poor, rural families with little or no education.
The previous legal regime meant that a 17-year-old boy who had consensual sex with another girl his age could be charged with statutory rape, while a 50-year-old who raped his 15-year-old wife was committing no crime.
Successive Indian governments have defended the exception, arguing that social and economic conditions in many parts of the country make child marriage an unfortunate reality, one that needs to be addressed by development programmes rather than the law.
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The Delhi high court is currently hearing a challenge to that law, which prevents women from pressing charges for rapes committed by their husbands.
The Indian government opposes the change, arguing it would “destabilise the institution of marriage” and put husbands at risk of “harassment”.
Last month the Indian supreme court also struck down a law permitting Muslim men to divorce their wives by communicating the word “talaq” – Hindi for divorce – three times.