When Vinod brought home his 17-year-old wife last September, little did he know he was committing a crime that would land him in jail for months.
A 21-year-old Paniya tribal youth from north Kerala’s Pachilakkad, Vinod was simply following community customs dating back centuries, where the age of the bride is immaterial and marriage allowed post puberty.
But two days later, he was picked up by police and charged under India’s tough new child abuse law.
He hadn’t heard of the 2012 Protection of Children from Sexual Offences Act (Pocso) before.
He isn’t the only one. Last month, a tribal youth, Babu, was sentenced under Pocso to 10 years in prison for raping his underage wife in spite of the woman pleading before court to let him go.
Dozens of young tribal men in Kerala’s Wayanad district have been charged under Pocso in the past three years but local residents say the boys were merely following tradition that doesn’t recognise modern definitions of adulthood.
They allege the tough law – brought in to crack down on rising child sexual abuse cases – was being misused by police as local tribal population had little awareness.
“When even those in cities are not aware of Pocso, how can you expect tribals to know about it when there are no awareness programmes?” said Dr Hari PG, a tribal activist.
Vinod’s friend Shibu found out about the law inside jail once he remanded to prison for two months under Pocso.
“Our parents don’t interfere when we bring our partners home and age is not usually their primary concern. We are not justifying child marriage but pointing out the lack of awareness of laws like Pocso among our community,” said
Biju, an activist from the Paniya tribe.
A majority of tribal youth in Kerala’s prisons come from the Paniya tribe, a 98,000-strong community that were mainly bonded labourers for centuries. Most are still landless with 30 families often dependent on half an acre of land.
In 2015 alone, 12 child marriage cases among tribals were registered in the state, according to official Child Welfare Committee(CWC) estimates.
Tribals make up nearly a tenth of India’s population and live mainly in rural and forested regions, following customs that are often at odds with modern laws.
Their poverty and lack of formal education aggravate the problem of obtaining bail. Vinod pledged the title deeds of his aunt’s property and Shibu mortgaged his mother’s land.
“Considering their past as bonded labourers, it would be difficult for them to claim land even under the Forest Rights Act (FRA),” says Sheethal at the Tata Institute of Social Sciences.
The arrests have triggered mass protests. On April 11, hundreds of tribals walked to the special Pocso court in Wayanad town – a rally made conspicuous by the unusual absence of mainstream political leaders in election season.
Wayanad district collector Keshavendra Kumar -- also the head of the district SC/ST monitoring committee -- directed police to abstain from using Pocso on customary tribal child marriages occurring with the support of family.
“We have taken up the issue with the ST and law department. If there is any doubt whether Pocso should be invoked in a case, police can refer it to the district government pleader or bring it to the notice of the district level committee,” said Kumar.
In the future, such cases will be addressed within the bailable provisions of the British-era Child Marriage Restraint Act, said Pocso special public prosecutor Venugopal.
But relaxing the norms for tribals has sparked criticism. Wayanad CWC chairperson Father Thomas Joseph said the law was acting as a deterrent. “Statistics that claim 30-60 tribals are undergoing Pocso imprisonment is exaggerated. If bail provisions give them trouble, it can be addressed legally,” he said.
Babu Narikuni of the Kerala State Commission for Protection of Child Rights argued for more awareness instead of doing away with Pocso. “We found several cases were not customary marriages, but rather 13-year-old girls marrying 30-year-old men,” he said.
Senior lawyer Kaleeswaram Raj noted the issue called for a realistic approach. “If there is no malicious intention behind their practices, the executives should see it as a part of a custom and not a penal offense,” he said.
(Vaisakh E Hari is based in Thiruvananthapuram)