Many parts of India evidenced panic weddings of young girls aged 18-20 after the Government of India proposed raising the minimum marriageable age for Indian women. The Prohibition of Child Marriage (Amendment Bill), 2021 strives to codify the recommendations of a task force under the chairmanship of former Samata Party leader Jaya Jaitley. The Act prohibits the marriage of “any male who has not completed twenty-one years of age” and “any female who has not completed eighteen years of age”. It will balance the minimal martial age for men and women at twenty-one. This proposal is a progressive step towards fulfilling the constitutional mandate under Article 14 and Article 15. The increase in age would provide women with a better opportunity for self-growth and financial growth and ultimately slow down the population explosion rate and mortality rate according to the government.
According to United Nations Children’s Fund, child marriage is defined as “a marriage of a girl or boy before the age of 18, and refers to both formal marriages and informal unions in which children under the age of 18 live with a partner as if married”.
. In 1978, the government increased the minimum marital age for girls from 15 to 18 years and boys from 18 to 21 years. In 2018, the Law Commission of India recommended decreasing the minimum legal age of men from 21 to 18.
Impact on Personal laws
Marriages in India are governed by the personal laws of the respective religion. It is explicitly mentioned in the amendment bill that “The provisions of this Act shall have an overriding effect over any custom or usage or practice about marriage, under any other law for the time being in force”. It has a secular impact on everyone in India. This may invite a huge hue and cry from the religious bodies as another attempt to bring in a uniform civil code.
Overlooks the Ground realities
COVID-19 has increased the frequency of child marriages in India. According to International Centre for Research on Women, India has the 14th highest child marriages; amounting to about 40% of the total world’s child brides. The highest cases are reported in Bihar, Jharkhand, Uttar Pradesh, Madhya Pradesh, and Karnataka. The rural girls are at a disadvantage over the urban girls. Poverty escalates the rate of child marriages. Girls from poor households are more likely to get married at an early stage because she is seen as a financial burden and even the fear of sexual assault forces a family to get them married at an earlier stage. The earlier the marriage age, the less would be the dowry. Poverty forces families to drop out of school. International Centre for Research on Women has studied that girls out of school are 3.4 times more likely to get married at 18 or less than 18 than those who are still in school. Not only the patriarchal mindset but the poverty should be also the target otherwise increasing the legal age would never bear fruit.
A recent national review found that adolescent girls are particularly vulneanaemia 45% of them 15-18 have a BMI less than 18.5 and many suffer from anaemia. As per the National Family Health Survey, nearly one-fourth of women between 20 and 24 of age are married before attaining the age of 18. The focus should be more on improving the health of the girls over increasing the marriageable age to reduce the mortality rate among teen mothers and babies.
Experts have raised their questions about the law itself and its poor implementation. They claim that this law is not feasible as even though India has prohibited marriage before 18 on paper it has failed on the ground reality. There are several loopholes in its implementation. Reporting of the cases is poor as the girl can report this only with help of her next best adult friend and the girl may face restraint within the family. A study has shown that even though 47% of girls were married as children between the years 2005- 2013, only a few cases were registered under the PCMA. Furthermore, the PCMA cases have the highest pendency rate.
The law contradicts many other laws and conventions. It goes against the Convention on Elimination of all Forms of Discrimination Against Women which recommends 18 years as the minimum age to get married. The Indian Majority Act, 1875 mentions that the age of majority for both men and women is 18 years of age. It is posing hypocrisy that women and men from ages 18-21 years are old enough to vote and drive and can be treated as an adult, but they are too young to exercise a choice to get married. Child marriages in India are illegal but not void. It is “voidable at the option of the minor party” within two years of them attaining a majority. It is valid marriage until a party moves to court for an annulment. This may look strange as on the side the government is prohibiting such marriages but on the other hand, it is still valid.
Child marriages not only end her childhood but also pushes her to enter into forced adulthood before she is ready for it. The disparity between the minimum age roots in the social norms about the perceived inferiority of the female gender, low educational levels among the masses, safety concerns, and the patriarchal mindset of society. The ills of society may not be taken away by words on stone but by overall upliftment of the society and value change in society. The government should encourage NGOs and local governments to run social programs to help girls from socio-economic backgrounds financially and morally across villages and towns by providing scholarships to them. If educational opportunities are made more accessible to young girls by establishing safe transportation from marginalized areas and increasing the number of vocational courses, more likely it is they would get married at an age later than 18 years. The legislature by bringing in better laws for improving the female workforce participation which stands at 21% lowest in the world. This would itself induce a reduction of early marriages as evident from a remarkable decline in child marriages between 2005-’06 and 2015-’16 because of better educational opportunities and factors other than the law. Punishment for solemnizing or promoting child marriages must be raised from two years. These steps would have a multiplier effect over the martial age. There is no question about the intent behind the bill but often misdirected ships end up drowning. Laws without the backing of societal support fail to deliver the desired objectives. Can the government deliver women’s rights merely by framing a law, without any accompanying infrastructural, financial and social support? The law has not studied the ground reality well. The achieve the true fruit of the intention behind the bill, the existing laws and procedures need a tightened.
Author(s) Name: Arshita Gupta (Rajiv Gandhi National University of Law, Patiala)