Child Marriage as Trafficking?

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.”