This article has been written by Shweta Jha of University of Mumbai during her internship at LeDroit India.
INTRODUCTION
The government of India; amid protests from the opposition has proposed legislation to increase the minimum age of women for marriage from 18 to 21, bringing both the genders at uniform age, currently the minimum age of women for marriage is 18 while that of men is 21. The decision is based on the recommendation of a task force led by former Samata Party chief Jaya Jaitly.
The government states that the aim of said proposal is to provide equal opportunity to women by giving them more time to complete their education, access employment opportunities, attain psychological maturity before marriage and ensure gender equality.
While introducing the bill, Smriti Irani, the minister for women and child development, made it clear that the bill seeks to overrule all existing laws, including “custom, usage or practice” governing the parties in relation to marriage. The move will involve bringing all related laws, including personal laws, in accordance with amendments. These include the prohibition of child marriage Act, the Indian Christian Marriage Act; the Special Marriage Act; the Parsi Marriage and Divorce Act; the Muslim Personal Law (Shariat) Application Act; the Hindu Marriage Act; and the Foreign Marriage Act.
BACKGROUND
The Union Cabinet has cleared a proposal to raise the legal age of marriage of women from 18 years to 21 years. The prime minister in his speech of Independence day on 15 August, 2020, had announced the intent of government to increase the marriage age of women and that a committee and task force had been formed to look into the case.
The decision was based on the advice of a four-member task force led by former Samata Party chief Jaya Jaitly. In June 2020, the Ministry for Women and Child Development set up a task force to look into the interconnections between the age of marriage with issues of women’s nutrition, generality of Anaemia, IMR (Infant mortality rate), MMR (maternal mortality ratio) and other social leads.
The committee, headed by former Samata Party president Jaya Jaitly, also had on board NITI Aayog member (Health) Dr V K Paul and secretaries of several ministries. The committee was to look at the possibility of increasing the age of marriage and its implication on women and child health, as well as how to increase access to education for women. The committee was to also recommend a timeline by which the government can begin the implementation of the policy, as well as the amendments that would need to be made in existing laws in order for this to happen. A bill to codify such a legal change was presented in the Lok Sabha on December 21. the decision is also prominent for declaring the principle of gender neutrality, by making the marital age for women the same as that for men.
HISTORICAL BACKGROUND
Child marriages are common in India. The International Center For Research on Women-UNICEF publications have estimated India’s child marriage rate to be 47% from a sample surveys of 1998, while the United Nation (UN) reports it to be 30% in 2005. The Census of India has counted and reported married women by age, with proportion of females in child marriage falling in each 10 year census period since 1981. In it’s 2001 census report, India stated zero married girls below the age of 10, 1.4 million married girls out of 59.2 million girls aged 10–14, and 11.3 million married girls out of 46.3 million girls aged 15–19. Times of India reported that “since 2001, child marriage rates in India have fallen by 46% between 2005 and 2009. Jharkhand is the state with highest child marriage rates in India (14.1%), while Kerala is the only state where child marriage rates have increased in recent years. Jammu and Kashmir was reported to be the only state with lowest child marriage cases at 0.4% in 2009. Rural rates of child marriages were 3 times higher than urban India rates in 2009.
Child marriage was prohibited in 1929, It was defined by The Child Marriage Restraint Act in 1929, under Indian law, which set the minimum age of marriage for females to be 14 and males 18. However, the law was opposed by Muslims and under protests from Muslim organizations in undivided British India, a personal law Sharia Act was passed in 1937 which implied no minimum age and the child marriages with consent from a girl’s guardian. After India’s independence in 1947, the act 1927 underwent two revisions. In 1949, the minimum legal age for marriage of girls was increased to 15 and in 1978, minimum age for marriage of girl was increased to 18 and that of male was increased to 21. With some Indian Muslim organizations seeking no minimum age and that the age matter be left to their personal law.
EXISTING PROVISION
The latest update of the definition of child marriage has been in The Prohibition of Child Marriage Act of 2006, which applies to all Indians and the renoucants of the union territory of Puducherry. For Muslims of India, definition of child marriage and regulations based on Sharia and Nikah has been claimed by some as a personal law subject but has been ruled by various courts that it applies to Muslims as well. For all others, The Prohibition of Child Marriage Act 2006 defines “child marriage” means a marriage, or a marriage about to be solemnized, to which either of the contracting parties is a child; and child for purposes of marriage is defined based on gender of the person – if a male, it is 21 years of age, and if a female, 18 years of age.
ADVANTAGES OF INCREASING THE MARRIAGEABLE AGE
The moment a girl gets married, whether she is 16, 18 or of any age, she is expected to reproduce, this happens in child marriages too which lead to high IMR (infant mortality rate). Pregnancies in teenage girls heighten the possibility of high blood pressure, If the girl doesn’t have enough nourishment of the mind or the body it often entails numerous risks such as low birth weight, complications of the mother’s pregnancy and delivery, and health problems associated with poor peri-natal outcomes; greater risk of peri-natal death, her child may turn out malnourished, lower IQ and academic achievements later on. Therefore increasing the minimum age of girls to 21 may be crucial for lowering maternal mortality rate (MMR) and infant mortality rate (IMR), as well as improvement of nutrition levels and sex ratio at birth, as these would encourage possibilities of responsible parenthood, making them more capable of taking better care of their children. It is also important to bring down the incidence of teenage pregnancies, which are not only harmful for women’s overall health, but also result in more miscarriages and stillbirths. Early marriages also cause mental health problems, as per studies, so increasing the legal age shall minimize the possibility of mental health issues among young girls.
Girls who are younger in age are more likely to experience domestic violence in their marriages as compared to older women. A study conducted in India by the International Centre for Research on Women showed that girls married before 18 years are twice as likely to be beaten, slapped, or threatened by their husbands and 3 times more likely to experience sexual violence. Young brides often show symptoms sexual abuse and post traumatic stress. Therefore, increasing the age for marriage may cope up with this situation.
When it comes to marriage, a girl has been put up in a disadvantage in terms of acquiring opportunities because the law already submerge a message to her that she need to do that only till she is 18 because after that she will have another job to do, hence increasing the minimum age for marriage will open up opportunity by giving them more time to complete their education, access employment opportunities, attain psychological maturity before marriage and ensure gender equality.
“If we talk about gender equity and gender empowerment in every field, we cannot leave marriage out because this is a very odd message that a girl can be fit to be married at 18 that cuts away her opportunity to go to college, and the man has the opportunity to prepare himself for life and earning up to 21 years,” said Jaitly.
Evidence shows that delay in marriage has positive economic, social and health effects for families, women, children and therefore the society at large.
DISADVANTAGES OF INCREASING MARRIAGEABLE AGE
An increase in age of marriage to 21 years would mean further persecution of girl’s right up till 21 years that mean that girls will have no say/right in their personal matters until they are 21. The basic right to be heard, the right for their views to be considered will be denied to girl’s right up till 21 i.e beyond their adulthood.
The law was used by parents against their eloping daughters. It will become an instrument for parental control for girls and for punishment of boys or men whom girls choose as their husbands. This has been witnessed 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.
Raising the female marriage age in the countries that have high son preference and high poverty may have the unintended consequences of increasing the prevalence of female infanticide and sex-selective abortion.
CRITICISM
Child and women’s rights activists, as well as population and family planning experts have not been in favour of increasing the age of marriage for women on the basis that such a legislation would push a large portion of the population into illegal marriages.
They have asserted that even with the legal age of marriage for women being kept at 18 years, child marriages continue in India and a decrease in child marriages has not been because of the existing law but because of increase in girl’s education and employment opportunities.. They have said the law would end up being dominant, and in particular may negatively impact the communities, such as the Scheduled Caste (SC) and Scheduled Tribes (ST), making them the law-breakers.
The oppositions argued that the child marriages are widespread in India at present in spite of the same being barred by law. As per the National Family Health Survey – 5 conducted by the Union health ministry (2019-2021), one-fourth of the women aged between 20-24 years were married before turning 18 years old. After the COVID-19 outbreak, the incidence of child marriages has increased across the planet. Therefore, the matter lies within the implementation of the existing laws. It is therefore argued that instead of legally increasing the minimum marital age, the root cause of child marriage should be inscribed in order to bring about a valuable change in society.
Another argument against the proposal is that some girls especially from the conservative, backward and patriarchal families escape their family’s clutches by choosing to marry a person of their choice after turning 18 years old. As a results of the proposed legal amendment, such girls would need to await for three more years; this period might be misused by families and therefore the wider community to threaten and control such girl.
CONCLUSION
In our democratic country, we are 75 years late in providing equal rights to men and women to enter into matrimony. In the 19th century, the age of marriage for women was 10 years, till 1940 the age was raised from 12 to 14 years and till 1978, girls were married at the age of 15. Through this amendment, for the first time, both men and women are going to be ready to make a choice on marriage at the age of 21, keeping in mind the right to equality.
The amendments to the bill will become effective two years from the date it receives the President’s nod so on provide sufficient opportunity to atleast one and everyone in the collective efforts and inclusive growth, and to form effective other provisions immediately. Eventually, whoever is responsible for policy making or is in any public work has to look for a balance which was aimed while introducing the provision.
