LEGAL AGE OF MARRIAGE FOR WOMEN IN INDIA

“When Jane Austen opened the novel Pride & Prejudice with a truth universally acknowledged, that a single man in possession of a good fortune must be in want of a wife, she was unwittingly airing the dirty linen of patriarchal capitalism. Marxist Feminists believe that the existence of private wealth and property under historical patriarchy created the construct of a male heir.”

In his Independence Day speech on August 15, Prime Minister Narendra Modi announced that the government will raise the age of marriage for women from 18 to 21. A committee has been formed for this, he announced, and a task force to consider the situation had already been notified by the Centre. The 10-member task force was notified on June 4, and is headed by MP Jaya Jaitly and NITI Aayog member Vinod Paul. This would be the first revision in more than four decades and put India in the league of Asian peers such as China, Japan and Singapore. The government believes this change will empower girls and young women, increase their access to education and improve the infant mortality rate (IMR) and maternal mortality ratio (MMR). According to data released by the Ministry of Health and Family Welfare and the Sample Registration System of the Registrar General of India, the country’s MMR has rapidly declined – to 113 in 2016-18 from 122 in 2015-17 and 130 in 2014-2016. The benefits range from lowering maternal deaths and improving nutrition levels in the near term to putting more girls in college and enabling women to achieve greater financial independence in the long-term.

Legal Age of Marriage Different For Men and Women

The law prescribes a minimum age of marriage to essentially outlaw child marriages and prevent the abuse of minors. Personal laws of various religions that deal with marriage have their own standards, often reflecting custom. For Hindus, Section 5(iii) of The Hindu Marriage Act, 1955, sets 18 years as the minimum age for the bride and 21 years as the minimum age for the groom. However, child marriages are not illegal — even though they can be declared void at the request of the minor in the marriage. In Islam, the marriage of a minor who has attained puberty is considered valid. The Special Marriage Act, 1954 and the Prohibition of Child Marriage Act, 2006 also prescribe 18 and 21 years as the minimum age of consent for marriage for women and men respectively. Additionally, sexual intercourse with a minor is rape, and the ‘consent’ of a minor is regarded as invalid since she is deemed incapable of giving consent at that age.

The Indian Penal Code enacted in 1860 criminalised sexual intercourse with a girl below the age of 10. The provision of rape was amended in 1927 through The Age of Consent Bill, 1927, which declared that marriage with a girl under 12 would be invalid. The law faced opposition from conservative leaders of the Indian National Movement, who saw the British intervention as an attack on Hindu customs. A legal framework for the age of consent for marriage in India only began in the 1880s. In 1929, The Child Marriage Restraint Act set 16 and 18 years as the minimum age of marriage for girls and boys respectively. The law, popularly known as the Sarda Act after its sponsor Harbilas Sarda, a judge and a member of Arya Samaj, was eventually amended in 1978 to prescribe 18 and 21 years as the age of marriage for a woman and a man respectively.

There is no reasoning in the law for having different legal standards of age for men and women to marry. The laws are a codification of custom and religious practices. The Law Commission consultation paper has argued that having different legal standards “contributes to the stereotype that wives must be younger than their husbands”. Women’s rights activists have argued that the law also perpetuates the stereotype that women are more mature than men of the same age and, therefore, can be allowed to marry sooner. The international treaty Committee on the Elimination of Discrimination against Women (CEDAW), also calls for the abolition of laws that assume women have a different physical or intellectual rate of growth than men. The Commission recommended that the minimum age of marriage for both genders must be set at 18. “The difference in age for husband and wife has no basis in law as spouses entering into a marriage are by all means equals and their partnership must also be of that between equals,” the commission noted.

Current Situation and Figures

“A report published by the United Nations Population Fund (UNFPA) said that while child marriages were almost universally banned, “yet they happen 33,000 times a day, every day, all around the world”. UNICEF estimates suggest that each year, at least 1.5 million girls under the age of 18 are married in India, which makes the country home to the largest number of child brides in the world — accounting for a third of the global total. Nearly 16 per cent adolescent girls aged 15-19 are currently married.”

According to the National Family Health Survey 4 (2015-16), 26.8% of women between ages 20-24 were married before the age of 18, despite the 1978 law making child marriage for girls below 18 and boys below 21 illegal. The proportion of women aged 20 years to 24 years who had been married when they were below the age of 18 years – the preferred and globally used indicator of child marriage – was 54% in 1992-’93, 50% in 1998-’99 and 47% in 2005-’06. It fell impressively only in the last decade, between 2005-’06 and 2015-’16. Even so, this means roughly 1.5 crore young girls were married as children, in violation of the law. Despite these huge numbers, hardly any violations of the Act appear in our criminal records.

The National Family Health Survey (NFHS-4) data 2015-16 points to certain trends in early marriages: That rural women are likely to marry earlier than their urban counterparts; that the higher up a woman is on the wealth quintile, the later she marries. Most importantly, it establishes a direct causal link between education levels and delayed age of marriage, with the former impacting the latter, not the other way around.

According to the wealth quintile data, the poorest households are concentrated in rural India. The lowest quintile, which is most likely to marry off their girls early out of socio-economic necessities, have 45 per cent of the Scheduled Tribe (ST) and 25.9 per cent ScheduledCaste (SC) households, as compared to only 9 per cent of the general “Others” category.

The NFHS-4 data on women aged 15-49 by number of years of schooling completed shows that 42 per cent ST women and 33 per cent SC women have received no schooling. Merely 10 per cent ST and 15 per cent SC women have completed 12-plus years of education as compared to 30 per cent women among the Others (general category) and 21 per cent among Other Backward Classes. Only 8 per cent rural girls who drop out in the age group 6 to 17 years cite marriage as the reason, fifth in the order after loss of interest in studies, prohibitive cost of education, burden of household work, and schools located far away.

The Raging Debate

The women's wing of the Muslim League has written to the Prime Minister urging him not to hike the legal marriageable age of women from 18 to 21 years. Secretary of the league, P K Noorbana Rasheed in the letter written to PM Modi says delaying the age of marriage will give way to live-in relationships and illegitimate relations.

An increase in age to 21 years would mean further persecution of girls right up till 21 years. We’ve seen this in the Supreme Court and the Kerala High Court in the Hadiya case, where an adult woman’s decision to marry was challenged by her parents. This is how it plays out in the Indian context.

The elementary right that the child rights convention bestows upon minors — the right to be heard, the right for their views to be considered — will be denied to girls right up till 21, beyond adulthood.

The Prohibition of Child Marriage Act (PCMA), 2006 sets the minimum age of marriage at 18 years for women and at 21 for men. It treats underage marriages as valid, but voidable. It means that an underage marriage is valid as long as the minors involved in the marriage want it to remain valid. The PCMA also treats those underage marriages as void or having no legal validity, where they involve trafficking, enticement, fraud and deceit.

A valuable provision in the PCMA is that it allows the minor party to repudiate the marriage or to have it nullified right up till two years of attaining majority. This allows girls who elope with their partners to demand that their marriages are protected. This right should never be taken away.

There is also a provision for injuncting an underage marriage from happening, which allows social workers flexibility in negotiating with the families involved and in getting the help of the district administration, child protection agencies, as well as the police. They usually do not use the law to formally prosecute as the repercussions at the village level are very severe for those who interfere. We saw this with Bhanwari Devi who was gang-raped for stopping a child marriage.

It’s important to have the PCMA declare child marriages void ab initio, which means that all child marriages would be considered as invalid marriages. It would help young girls who are forced into marriages and want to come out of it. We need to recognise child marriage as a human rights violation as it endangers the lives of young girls by exposing them to increased domestic violence, marital rape, early pregnancies, etc. Rendering all child marriages invalid will also make them unacceptable. Of course, it has to go along with some measures to protect young girls such as maintenance and protection orders from domestic violence.

An issue like child marriage is a social issue, an economic issue. While there is the Right to Education Act, 2009, the quality of education is poor and doesn’t show a way out of inter-generational poverty. Poor families don’t see any value in continuing education. Second, a lot of parents are interested in private education because it is better, but they can’t afford it. Third, poor families thrive on domestic work and a girl often gets pulled out of school to help at home. So, this myth that girls leave education because of marriage is not borne out by data. We must ensure an increase in the scope of the Right to Education for girls right up to vocational studies.

To introduce criminal law and punishment and to declare child marriage void is like saying hunger is a human rights problem and the way to address hunger is by criminalizing those who have less food or eat one meal.

The Way Forward

“Daughters were excluded from this private system of inheritance and ownership as they were akin to property themselves. Their guardians merely changed from their fathers to husbands once they had attained puberty and given evidence of their fertility, thus becoming one of the fundamental reasons as to why a legal age of marriage was pushed for. Due to their primary role in reproduction, a task which falls under the realm of domesticity, girls also had less access and opportunities to the wealth produced in the global capitalist economy. Patriarchal capitalism created a sexual division of labour under which men would undertake paid work outside the home, and women would perform unpaid work within it. In The Origin of the Family, Private Property and the State, Friedrich Engels observed that this artificial distribution of work constituted “the world historical defeat of the female sex.”

If the root causes of child marriage are not addressed, then this law is actually going to harm us. It can be easily inferred that female foeticide will increase because the parents will be more burdened by girl children if the marriageable age is increased. If they’re allowed to vote at 18, then they should also be allowed to take decision for their marriage and bear children. It would be more appropriate to bring the beneficiary on the discussion table and know their opinions because it is they who are going to be affected largely in a long run. Only raising the legal age of marriage will not solve the persistent problems of domestic violence, violation of bodily integrity, financial dependence and other issues related to it. The issue at hand demands greater introspection and deliberation from various forums to reach a consensus.

SALIL SAROJ

NEW DELHI

9968638267