Raising minimum age of marriage for women inconsequential unless child marriages are effectively illegalised

On December 16, the Union government decided to raise the minimum legal age of marriage for women from 18 to 21. Pursuant to this, the Union Cabinet introduced a Bill of amendment to the Prohibition of Child Marriage Act, 2006 in the Parliament.

It aims to provide a uniform age of marriage across religions, irrespective of any law, custom or practice. According to the proposal, this will lead to empowerment of women. It has been introduced as a move to aid “women progress on all fronts including their physical, mental and reproductive health”.

But the Bill has been referred to a Parliamentary standing committee after resistance from various sections of the society as well as opposition parties.

In June 2020, the Union Ministry of Women and Child Development had formed a task force led by politician and activist Jaya Jaitly. According to Jaitly, the agenda of this task force was not population control because data from the fifth National Family Health Survey (NFHS) indicates that the country’s Total Fertility Rate has been below 2.0 and India’s population has already been controlled. The main aim behind this move, therefore, was to tackle matters pertaining to age of motherhood such as reducing maternal mortality rate, she said.

In order to do this, they received feedback from 16 universities and consulted with 15 NGOs. On the basis of this, the decision of raising the minimum legal age was taken.

But the underlying issue here is that of child marriage. When girls get married off at a young age, the chance of death during childbirth increases.

One of the primary objections to the bill relates to the freedom of choice. Communist Party of India (Marxist) General Secretary and former Rajya Sabha member Sitaram Yechury has said that a women at the age of 18 is legally an adult. According to him, for the purpose of marriage, treating her as a juvenile is self-contradictory and the proposal violates an adult’s right to make personal choices of her partner.

The All India Majlis-E-Ittehadul Muslimeen party chief and Lok Sabha member Asaduddin Owaisi had a similar take on the issue.

In the opinion of people who have such objection to the proposal, the legal age of marriage for both men and women should be 18 years. This has also been suggested in the 2018 Law Commission Report.

In fact, this has been the trend worldwide. According to a 2010 United Nations (UN) Population Fund report, 18 years was the minimum legal age of marriage without parental consent in 158 countries.

This, therefore, brings up the crucial question of reducing the minimum legal age of marriage for men to 18 years. However, to better grapple with this problem, it is important to understand the menace of child marriage in India at a deeper level.

In 1917, some women came together to form the Women’s Indian Association. This association dealt with issues related to women. The issues were raised in front of the British government in India. Some of the women who were part of this association were British women’s rights activist Annie Besant, and the social reformers Kamladevi Chattopadhyay and Muthulakshmi Reddy. This association worked with the freedom fighters of the time in order to raise women’s socio-political and economic issues.

In 1929, judge and politician Har Bilas Sarda introduced a Bill to restrain child marriages in India. This was supported by the members of the All India Women’s Conference, the Women’s Indian Association and the National Council of Women India.

Under pressure, the British passed the Child Marriage Restraint Act, 1929, according to which minimum age of marriage for girls was 14 years, and for boys was 18 years. However, the actual ground level implementation of this law was flawed, and failed to effectively stem child marriages.

The next major step was taken in 1949, when minimum marriage age for girls was raised from 14 years to 15 years through an amendment in the Act. But it was only in 1978 that the minimum marital age for girls was increased to 18 years, and for boys, to 21 years, through another amendment in the Act. The offence of child marriage was also made cognizable. Despite this, the ground reality didn’t see much of a change.

In 2006, the Prohibition of Child Marriage Act was passed. This was the first time that child brides were given an option to ‘declare’ their marriages as void. Section 3 of this act states that every child marriage is ‘voidable’. However, there was a two year time limit given for this; that is, for girls this could only be executed till the age of 20 years, and for boys till 23 years.

The loophole here is that child marriages were not void automatically; they were ‘voidable’. There were, however, certain exceptions made where child marriages were void from the start, such as when the marriage took place without parental consent. However, other than that, they were ‘voidable’ and not void.

Till 2017, the age of consent for physical relations for a girl was 18 years, but the same was 15 years for a child bride. This, therefore, raised the issue of marital rape in child marriages. It was then that a Supreme Court bench consisting of Justices Madan Lokur and Deepak Gupta criminalised marital rape for girls under the age of 18 years in a landmark judgment.

This therefore raises yet another question as to why underage marriages have not been criminalised altogether till now.

As per the UN Children’s Fund, more than 1.5 million girls under the age of 18 get married in India. At a global level, one-third of the total are from India. According to 2019-21 NFHS data, 23 per cent marriages in India are child marriages. This is in blatant abrogation of the law in place right now.

According to research by Partners For Law in Development (PLD), between 2014 and 2016, a total of 1,785 cases were registered against child marriages. However, only 274 were convicted out of which 65 per cent were cases of elopement.

It is crystal clear that the authorities have not been vigilant enough to deal with the actual problem of child marriages. There has to be a complete ban on underage marriages.

This problem is also widespread in many other nations. The 2010 report by the UN Population Fund, referred to earlier, estimates that in 146 countries, State or customary laws allow girls younger than 18 to marry with the consent of their parents.

In the recent past, many nations have taken progressive steps towards this issue. For example, in 2018, Norway’s Parliament declared a blanket ban on marriages under the age of 18. Similar steps were taken in Tanzania by its Supreme Court in 2019, and through the establishment of a National Marriage Age Maturity Movement by the government in Indonesia last year.

The decision of the government in India to raise the minimum age of marriage for women to 21 years could be seen as a progressive step to tackle this issue. However, unless this decision is accompanied with the illegalisation of child marriages, it will not be successful in bringing any significant reduction in child marriages.

(IPA Service)

Views are personal

Courtesy: The Leaflet