Raising the Age of Marriage: A Legal Quandary

When Prime Minister Narendra Modi announced a proposal to raise the legal age of marriage for women in his Independence Day speech this year, it invited applause as well as criticism in equal amounts. This article critically analyses the pros and cons of such a step in the context of the patriarchal society of India.

I. Introduction

The setting up of a committee to explore the possibility of raising the marriageable age of girls by the central Government of India has opened up the discourse on the role of law in the area of social change. Social changes through legal declarations have been conventionalised in India since the late 19^th century. While its efficacy is debatable, its instance is unquestionable. The law has become an instrument to control and dissuade the masses from engaging in socially unacceptable behaviour. It not only prescribes a certain norm but also criminalises the other. Women and their bodies often become the sites of desired reform.

Is such legislation successful in arresting the occurrence of the social practices they seek to prohibit? It is an age-old question. The precedent of the failure of legislation like the Dowry Prohibition Act, 1961 suggests that it takes more than legislation to fight these social evils. The question is intensified in the context of a country which is more secularised, political and literate than before. Thus, these questions need more democratic canvassing and debate.

II. Legal Framework for Prohibiting Child Marriage in India

In line with the target 5.3 of the Sustainable Development Goals, India has committed to eliminating child, early and forced marriage by 2030. India is also a signatory to a number of other international agreements to prohibit child marriage. The Prohibition of Child Marriage Act, 2006 is the governing legislation outlawing child marriage in India. The act defines a child as “a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age”.

The idea of a different age of marriageability for males and females was inherited from its predecessor legislation, the Child Marriage Restraint Act, 1929. The act is popularly referred to as the Sarda Act after the legislator, judge and reformer Harbilas Sarda who introduced the act. It prescribed the age of marriage to be 14 and 18 years of age for females and males respectively. It was amended in 1940 and 1978. In 1978, the age of marriage was fixed at 18 and 21 years for a woman and a man respectively.

III. The Rationale for Different Ages of Marriage for Females and Males

The different ages of marriage for girls and boys have been criticised by the Committee on the Status of Women under the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), stating:

“Some countries provide for different ages for marriage for men and women. As such provisions assume incorrectly that women have a different rate of intellectual development from men, or that their stage of physical and intellectual development at marriage is immaterial, these provisions should be abolished.”

Acknowledging the above criticism, the Law Commission report on the Proposal to Amend the Prohibition of Child Marriage Act, 2006 and Other Allied Law added that the definition of a child varies across statutes, which leads to a great deal of confusion. The statutes prescribing different ages should be closely examined. In regards to the act of 2006, it plainly stated that “there is no rational basis for having different ages for marriage between boys and girls. This provision is discriminatory, biased and based on patriarchal notions of marriage.

Thus, keeping in mind the mandate of Article 14 of the constitution, the argument of equality in the age of marriage is unassailable and attempts to correct this historical wrong should be welcomed but this could be fulfilled by bringing down the age of marriage for men at 18 years, which is the mandate of many international conventions like CEDAW.

IV. Child Marriage in India: Contemporary Situation

The controversy at hand presents a unique situation. It seeks to raise the age of marriage in a situation when even the earlier mandate is not duly followed. As per the decadal census of 2011, almost 30 per cent women in India were married before 18 years of age. In 2019, 525 cases of child marriage were registered across the country.

India has a high instance of forced marriage, a large portion of which is solemnised before the age of 18 years. The National Family and Health Survey (NFHS)-4 of 2016-17 revealed that 27 per cent of girls are married before turning 18; 31 per cent of married Indian women gave birth by the age of 18 years. This has led to nutritional and health outcomes like wasting, stunting and early mortality reflecting in indicators regarding Infant Mortality Rate (IMR), Maternal Mortality Rate (MMR), Total Fertility Rate (TFR), Sex Ratio at Birth (SRB) and Child Sex Ratio (CSR). This is worrisome and makes a case for raising the age of marriage.

However, the rider here is that how would the new mandate be enforced when the implementation of the older mandate has not been effective? Another question that needs consideration is that of criminalising innocent men especially in cases of non-endogamous marriages performed without family’s consent.

Many activists have argued that the law, along with other forms of social advocacy, has been largely successful. The incidence of child marriage has reduced throughout the country by 51 per cent since 2000. While the absolute number of child marriages is high, the incremental figures are much lower. The average annual rate of reduction of child marriage is around 5.5 per cent, one of the steadiest in South Asia. Moreover, most of the child marriages are actually adolescent marriages and the marriages of much younger children are largely extinct. Thus, it is argued that further raising the age of marriage could be detrimental for access to sexual health and nutrition for women.

V. Policy Considerations for Raising the Age of Marriage

There are many adjunct policy questions that can’t be lost sight of in this discourse. The latest SBI Ecowrap report suggests that the decision to raise the age of marriage would have tremendous social and economic consequences. It would lead to more opportunities for women to pursue higher education and careers by pushing the mean marriage age, which now stands at 22.3. It is argued that it would lead to better nutritional outcomes due to late pregnancy, thus contributing to the vision of Poshan Abhiyaan. These are valid arguments and need to be considered while reaching any decision on the instant question.

VI. Comments and Conclusion

However, two important things should be emphasized on in this debate. The first is that law can only initiate an argument but it cannot be the most important argument for harbouring social change. During the debate on Sarda Act, a member of assembly Srinivas Iyengar argued, “Members of this legislature must create an opinion; and in the matter of this description, the opinion must go down from the legislature to the populace rather than from the populace to the legislature”.

It is no wonder that the law was considered a dead letter during the colonial rule. Today a statement like this would be considered patronising and undemocratic. The decision making, especially in matters of social life, has to be more inclusive.

Secondly, the lateness of marriage by itself cannot empower women. Empowerment cannot be gifted as a governmental bounty. The government can only facilitate empowerment. Thus, there is a need for better educational opportunities for girls, conditional cash transfers, access to better health and nutrition. There are many states in India which have a kanyadan yojana, a scheme of cash transfer.

A patriarchal state cannot empower women. Marriage has to stop being the epicentre of women empowerment.

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1. Women and Child Rights; Notes, Case Laws & Study Material