A Comprehensive Analysis of Increasing the Minimum Age of Marriage: Implications And Way Forward
This article provides an analysis of Increasing the minimum age of marriage, protection from sexual coercion and increased favourable exposure. A Comprehensive Analysis of Increasing the Minimum Age of Marriage: Implications And Way Forward India’s predominantly conservative and stereotypic society is governed more by social and religious customs than the “law of the land”. A detrimental consequence of… Read More »
This article provides an analysis of Increasing the minimum age of marriage, protection from sexual coercion and increased favourable exposure. A Comprehensive Analysis of Increasing the Minimum Age of Marriage: Implications And Way Forward India’s predominantly conservative and stereotypic society is governed more by social and religious customs than the “law of the land”. A detrimental consequence of over adherence to religious dictates is early marriages depicting the...
This article provides an analysis of Increasing the minimum age of marriage, protection from sexual coercion and increased favourable exposure.
A Comprehensive Analysis of Increasing the Minimum Age of Marriage: Implications And Way Forward
India’s predominantly conservative and stereotypic society is governed more by social and religious customs than the “law of the land”. A detrimental consequence of over adherence to religious dictates is early marriages depicting the paternalistic nature of the society. Even after years of revolutionizing movements to secure educational rights and health awareness, certain parts of our country still witness incidents, like diversion of resources from girls’ education, forced marriages, and coerced pregnancy at a biologically inconvenient age.
To deal with the aforementioned subjects, the government has tabled an amendment according to which the marriageable age of women has been raised to 21 to be equal to that of the men. The government envisions potential improvement in the maternal health and the educational rights of women. The opposition argues that statistically, women having access to higher levels of education, awareness, and economic resources tend to marry and conceive at a later stage, giving primacy to an educationally enriched life, and hence, the amendment seems to restrict the personal liberty of women beyond adulthood.
Furthermore, arguments regarding the government not focusing on stringent preventive measures for the currently pervading cases of child marriages and still paving way for an even larger number of cases underpins the fallacies of the move. We argue that a model of minimum age for marriage, which protects the secularity of the nation as well as the rights of the stakeholders is imperative. Further, we provide an analysis of some positive implications of the amendment, like protection from sexual coercion, increased favourable exposure furthering the status of women.
Lastly, we argue for some steps in direction of better and easy availability of education for girls which can further help women become conscious of their rights.
Introduction
In 2020, the government proposed an amendment to the Prohibition of Child Marriage Act,2006, raising the age of marriage to 21 for the women, from the former age bar of 18, that has been approved by the cabinet, setting in motion the process for a major change in the law and bringing about the predetermined socio-legal changes related to equality, educational opportunities, maternity status, motherhood, and nutrition, etc.[1] .
The Centre has relied upon a Supreme Court ruling titled Independent Thought v. Union of India in which it was pointed out that “Law cannot be hidebound and static. It has to evolve and change with the needs of society”.[2] The amendment, seemingly having far-reaching implications, has been welcomed with appreciation from some and backlash from others.
To understand what the law entails for a widely-respected and rigidly upheld social institution and its stakeholders in general, we must delve into the reasons behind the difference between the age of marriage between men and women, the concept behind it, the seemingly progressive ideas behind the amendment, its effects on the peaking cases of child marriage, and the indispensable upliftment of women.
Need for a ‘Minimum Age of Marriage’ Bar
Primarily, the need for a minimum age arises in order to prevent the possible exploitation of minors and hence, to outlaw child marriages. The current minimum age of marriage has evolved through a lot of debates, discussions, protests, legal procedures, and in the course, it has been affected by various outdated religious ideas.
Prevalence in religious and ancient texts
In a religiously zealous society like ours, theological texts and personal laws have had a huge impact on the mindset governing the minimum age of marriage, especially for girls. In Manusmriti, Verse 9.88 has been interpreted to translate that a girl should be married off by her father before she attains puberty, or turns 8 years old[3]. Quran sanctions marrying away prepubescent girls. Further, such dictates became a custom in Indian society because of fanatical adherence and increased poverty where families preferred marrying girls at a younger age in order to have one less mouth to feed and keep up their religious orthodox ideals.
Discrepancy in the practice of personal laws and special laws
Muslim law and the Islamic scriptures validate a marriage conducted between two people who have attained puberty and have turned 15 years of age. While at the same time, special marriage law pursues the criteria followed under Hindu Marriage Act. Many high courts have dealt with the clash between personal and special laws, and have presented various differing opinions[4]. This inconsistency leads to the question that which law shall prevail over the issue pertaining to the validity of a marriage.
Legal provisions in India
There has also been considerable legal evolution to the minimum age of marriage ranging from the Indian Penal Code initially, in 1860 criminalizing any sexual intercourse with a girl below the age of 10 to the Age of Consent Bill, 1927[5], making a marriage with a girl under 12 invalid. Further, in 1929, the Child Marriage Restraint Act, popularly known as Sarda Act, set 16 and 18 years as the minimum age of marriage for women and men respectively and eventually got amended in 1978 to prescribe 18 and 21 years as the age of marriage for women and men, respectively.
An intriguing question that arises here is, why a country, that claims to treat its men and women equally, would legalize different age bars for the two genders. One of the bases of this difference lies in the laws being a codification of societal customs and religious practices, a few of which have been mentioned above.
It can be contended that the said difference between the marriageable age in some way contributes to certain paternalistic tropes. But does the current amendment, in any potential manner, do any benefit to highlight gender-neutral views in a reasonable manner and liberate the class of people that it claims to empower- the women?
Positive Implications of Amendment
The government has tabled the said amendment on the basis of two major affirmations; first of them being education of the girls, since a lot of them are made to leave schools at a tender age in order for their families to get them “married away”, and the second basis of the amendment is regarding the maternal health of the women because, in cases of early marriages, women have been observed to conceive much earlier, posing certain risks to them, like anaemia and even maternal mortality or infant mortality[6].
Sexual coercion
In India, girls are often married away without their consent, especially in areas where the prevalence of child marriages is high. With marriage, often comes the coercion of becoming sexually active and indulging in intercourse. The responsibilities that accompany with sex might not be realized by a girl who is not mentally, or educationally capable of forming a perspective and giving consent.
Lack of exposure
The argument that a girl achieves maturity faster than boy reflects the patriarchal mindset of our society. Firstly, attaining maturity is not supposed to be considered merely on the basis of emotional or cognitive capabilities. In earlier times, men were considered smarter and superior to women. The rationale behind this, other than the intrinsic patriarchal nature of our society, lay in the reasoning that men used to go out to work, and this provided them with more exposure and taught them how to sustain in difficult conditions.
But women never got this opportunity because of the shackles built by child-bearing and household chores, and therefore they were not able to grow. This concept would not be valid if the age of marriage is increased because women would then get more opportunities to become financially independent, and would get more exposure by gaining an outlook, which would further decrease their dependency on men.
In addition, simply decreasing the age of marriage for boys to 18 in the name of ‘equality’ is not appropriate because that would not solve the issues related to health and economic dependence for women.
Secondly, if Indian culture furthers sustains on the idea that a girl is meant to be married away as soon as she becomes mature, it will lead to sheer discrimination of the particular gender by snatching away the possibility of an academically and educationally enriched future where she would actually get a chance to become independent and co-habitat with her spouse with respect and honor.
Legal Perspective
In the case of Joseph Shine v Union of India[7], the Supreme Court stated that “a law that treats women differently based on gender stereotypes is an affront to women’s dignity.” Further, the Law Commission, in a consultation paper of reform in family law in 2018 also stated that “maintaining the difference of eighteen years for girls and twenty-one years of age for boys simply contributes to the stereotype that wives must be younger than their husbands”[8].
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”[9].
Consequences and Drawbacks
The opposition has contended that the legislation does not address the root problem behind circumstances leading to early marriages. Further, it has been argued that these laws will allow parents to control the autonomy of young girls and penalize them for their sexual choices. The National Family Health Survey (NFHS 5 2019–’21) showed that the rate of child marriages is still distressing at 23%[10]. Girls will not get marital rights, making them susceptible to increased domestic harassment.
The second objection being raised is the criminalization of a large number of marriages that will take place once the law comes into effect. While 23% of marriages involve brides under age 18, far more marriages take place under age 21. Here, once the age of marriage is increased, there will be a certain decrease in the number of marriages between the ages 18 to 21.
Further, in order to reduce the number of child marriages after the implementation of this law, it is imperative to complement it by altering the status of child marriages from valid to void ab initio. There are a lot of arguments and requisite analysis in opposition as well to the amendment or to put simply, highlight the fallacies of the amendment, which to a certain extent makes it ineffective.
Opposition to the amendment
The government set up a task force to evaluate the outcomes of the said bill. The report of the bill elucidated the positive socio-economic and health impact in case of delayed marriages, highlighting the late 20s-early 30s as the most medically convenient age to conceive and the risk women’s bodies have to undergo in case of early pregnancy.
The most reasonable argument against the proposition of increasing the minimum age of marriage is that an alteration in the laws cannot bring down the instances of child marriage in India. It is imperative to understand that the question in front of us majorly deals with the consequences of young marriages which can only be avoided by presenting women with favourable opportunities for economic independence and willful thinking.
Lack of education and awareness
Education and awareness make women capable enough to maintain themselves and their families, make independent decisions pertaining to marriage and child-bearing and pave the way for the delegitimization of the “daughters-as-a-burden” idea. It has been an observed trend that women in developed areas where they have access to education and a career, anyways tend to opt for marriage late and hence conceive in the later stages.
Scarcity of economic resources
The problem of child marriages is exaggerated with the nature of the areas where child marriages are usual; such areas have been widely observed as poverty-ridden were marrying off daughters is one of the convenient ways to lower the expenses of the family rather than educating and empowering her. The apparent problem in such situations is the lack of economic resources and awareness of the means to expand or have access to those resources.
Primacy accorded to outdated social customs rather than to the constitution and the law
It is vivid that marriage is an institution fashioned by humans which is socially looked upon and rigidly upheld and has taken the form of a “norm” in our conservative society. Marriage, predominantly in the areas most plagued by child marriages, is seen as an obligation that has to be completed by the parents by “marrying off” their daughters, at the earliest. It is a widely observed trend with regards to the conservative thinking that people exercise in order to secure their customs and traditions to such an extent that the “law of the land” becomes secondary to them.
No impactful legal arrangement tabled to actively prevent such cases
The criminalization of child marriages has continued for a long time but they are still widely conducted with no concern of the law, which is a problem of such gravity that it would turn any law/amendment ineffective. The current amendment does nothing with regard to this particular enigma; it does not provide any impactful arrangement to fight the cases of child marriage in any manner.
Child marriages are already rampant in our country and the legal procedures have not proved to be of any use to curb the menace. Further raising the age of marriage without the introduction of any system to take preventive actions against child marriage, would only turn into more such marriages becoming criminal, further burdening the legal institutions with a considerable number of cases.
Way Forward
The evolving pattern of society has improved the inherently prejudiced mindset of people to some extent, but the only way of eradicating the evil of child marriage is by spreading awareness amongst the masses. The basic reasons behind the evident number of child marriages in India are poverty, lack of education, and primacy being given to outdated and orthodox social customs and traditions. There have been trends in rural areas where girls are taken out of school to either divert the resources towards the boy child, or it is considered a waste of money to teach girls.
Certain other societal stereotypes and the fear of indiscretion caused by a girl to family aggravates the number of child marriages, transforming certain religious texts like Manusmriti and Quran into a discriminatory and preferential custom. The daughter, in order to keep up the adherence to these religious and biased customs, is married off before she even achieves emotional sensibility to understand the responsibility of marriage. With changing times, laws based on outdated customs have to be altered. A criterion governing the minimum age of marriage is vital for women’s empowerment and growth in today’s world.
The government has to take up effective poverty alleviation programs, robust educational schemes for the girl child, stringent preventive measures against societal evils, like the dowry system, that impose unnecessary expenses, specifically for raising daughters and paving way for an inclination towards not spending on her education and development but diverting those resources to her dowry and provide incentives to women to encourage them to join the labour force to improve the social standing of women in India. The government has to take steps in the direction of better and easy availability of education for girls which can further help in women becoming conscious of their rights.
Due to the lack of requisite provisions in the law, a model of minimum age for marriage, which protects the secularity of the nation as well as the rights of the stakeholders, is imperative to be implemented.
The Law Commission paper recommended that the minimum age of marriage for both genders 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. As discussed above, hypergamy that is prevalent in India is in itself patriarchal in nature and another special custom that incentivizes the early marriage of women so that they are younger than their husbands.
The government, apart from investing substantially in the education and health of women, should table stringent preventive measures against the menace of child marriages to actively curb them from taking place. Furthermore, according to the Prohibition of Child Marriages Act, the marriage between two minors is voidable and not void-ab-initio, perpetuating the view that pushing two cognitively and emotionally underdeveloped minors into marriage is something to be dealt with under the purview of marital affairs that can be continued/ceased, once they reach maturity.
The act of child marriage should be void-ab-initio in order to bolster the exclusion of such marriages from marital affairs from their very inception and put into the purview of child exploitation and abuse.
By exercising all these measures, the basic idea behind child marriages contending “daughters being a burden to be given away as soon as possible” would collapse since women in large numbers, would become self-capable enough to take care of their families and themselves, be empowered enough to raise voice against the societal evils putting them at a lower standing as compared to men and have the awareness and right to live an educationally enriched life with independent decision-making regarding their career, marriage, and motherhood.
The authors of the article ‘A Comprehensive Analysis of Increasing the Minimum Age Of Marriage: Implications And Way Forward’ are Runjhun Sharma and Avestha Vashishtha. They are from the National Law University of Dr. Ram Manohar Lohiya. Their article focuses on positive implications of the amendment, like protection from sexual coercion, increased favourable exposure furthering the status of women as well as discuss some steps in direction of better and easy availability of education for girls which can further help women become conscious of their rights.
References
- [1] The Prohibition of Child Marriage (amendment) Bill, 2021 (Bill No. 163 of 2021).
- [2] Independent Thought vs. Union of India, (2017) 10 SCC 800.
- [3] Ganganatha Jha, Manusmriti with the Commentary of Medhatithi (University of Calcutta 1920) Verse 9.88.
- [4] Apurva Vishwanath, ‘Legal implications of enforcing age of marriage’ The Indian Express (New Delhi, 17 December, 2021) accessed 16 February 2022, Available Here
- [5] Tanika Sarkar, “A Prehistory of Rights : The Age of Consent Debate in Colonial Bengal” (2000) Feminist Studies, vol.26, no.3, Available Here
- [6] Sanya Dhingra, “Increase women’s marriage age to 21 for health benefits — Modi govt task force recommends” The Print (15 January, 2021 ) accessed 15 February 2022, Available Here
- [7] Joseph Shine v Union of India, 2018 SC 1676.
- [8] Jairam Ramesh, “What has the government done about Law Commission report on Uniform Civil Code”, The Hindu (India, 9 June 2020) accessed 13 February 2022.
- [9] Apurva Vishwanath, “Why is age of marriage different for men and women? The law, the debate” The Indian Express (New Delhi, 22 August 2019) accessed 18th February 2022, Available Here
- [10] Flavia Agnes, “Increasing marriage age for girls may only strengthen patriarchy” The Times Of India (New Delhi, 19 December 2021) accessed 14 February 2022, Available Here