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INCREASING THE LEGAL AGE OF MARRIAGE FROM 18 TO 21

Introduction

Child marriage has been a perpetual obstacle for India. Even in the 21st century, child marriage is a widespread social evil that exists in many parts of our country. According to the National Family Health Survey, women between the ages of 20 and 24 who married before reaching the age of 18 account for 14.7% of urban women and 27% of rural women.[1]

Socially, puberty has long been a factor in determining when girls are expected to marry. As a result, in the 19th century, girls were deemed prepared for marriage as young as 10 years old. The Sharda Act of 1929, renamed the “Child Marriage Restraint Act (CMRA)”[2], fixed the age of majority for marriage at 14 for girls and 18 for boys. The Act was amended in 1978 to raise the marriage age for women from 14 to 18.

The Hindu Marriage Act, of 1955 stipulates that “the bridegroom has completed the age of 21 and the bride the age of 18 at the time of the marriage”[3]. Under the Indian Christian Marriage Act of 1872, Christians are subject to the same restrictions. Muslims accept the validity of marriages between minors who have reached puberty which is presumed when the bride or groom reaches the age of 15[4]. The minimum age of consent for marriage is set at 18 and 21 years old, respectively, by the “Special Marriage Act of 1954” and the “Prohibition of Child Marriage Act of 2006.”

The New Bill

The Indian government introduced the Prohibition of Child Marriage (Amendment) Bill, 2021 in December of 2021 to legally raise the marriage age for women from 18 to 21 by amending the Prohibition of Child Marriage Act, of 2006 as a step towards ending this social evil. According to Bill, after the words “citizens of India without and beyond India,” in sub-section (2) of Section 1[5] of the 2006 Act, these words, “notwithstanding anything contrary or inconsistent therewith contained in the Indian Christian Marriage Act, 1872; the Parsi Marriage and Divorce Act, 1936; the Shariat Application Act, 1937; the Special Marriage Act, 1954; the Hindu Marriage Act, 1955; and the Foreign Marriage Act, 1969, or any other custom or usage, or practice about marriage, under any other law for the time being in force” shall be inserted. The bill proposes to define a child as “a male or a female who has not completed twenty-one years of age” and will only concern child marriages as the explanation of a child differs in most Acts.

Positive Aspects of the Amendment

The bill was presented in Lok Sabha by the union minister for Women and Child Development, Smriti Irani, and the suggestions of the Committee led by Jaya Jaitly were the foundation for the government’s decision. It would apply to all communities and religions in India and would amend the existing personal laws and grant women in all communities the same rights to get married. This step was taken to assist women in completing their education, prevent them from becoming pregnant at a young age, help them become independent, and build their mental and physical strength to shoulder the responsibilities of marriage.

Due to the many laws controlling different cultures and religions, there has been a great deal of ambiguity over the legal age of marriage up to this point. For instance, in the case of Nargis & Anr v. State of Punjab & Ors, (2021)[6] a Muslim lady who was 17 years old married a Hindu man who was 33 years old against the desires of their family. Since the girl was a Muslim, the court ruled that Muslim personal law would regulate her marriage. According to the book “Principles of Mohammedan Law,” a girl who is 17 years old is a major and can therefore marry the man of her choice. Although Muslim law prohibits minors from getting married, in this situation the girl was an adult, so the marriage is legal. This bill aims to prohibit child marriage and bring women’s marriageable ages on par with those of men regardless of whatever law, tradition, use, or practise regulating the parties.

Negative Aspects of the Amendment

This Act has its flaws that must be addressed. Critics wonder if the POCSO Act will be amended as an addition to the PCMA Act. The Protection of Children from Sexual Offenses (POCSO) Act of 2012 is India’s most extensive legislative framework on sexual crimes against children. Changing the legal age in the POSCO Act as an addition to the PCMA Act will change the dynamics of the Act as a sexual relationship between people ages of 18 and 20 would be considered a sexual offence.  Many incidents of sexual assault documented in the nation under POCSO and other regulations governing youngsters aged 16 to 18 are voluntary and are registered by a girl’s family who is frustrated with the teenagers’ conduct. The parties in “Hardev Singh v. Harpreet Kaur & Ors. (2019)[7]” had married each other without their parent’s consent. Based on the respondent’s father’s order, which was issued in accordance with “Section 9 of the Prohibition of Child Marriage Act 2006”, the appellant was 17 years old according to his school records, even though he claimed to be 23. As a result, the Supreme Court noted that the appellant was under the age of 18 years and ruled that if the male is under the age of 21 and the female is over 18, and they marry, the male child is punished rather than the female. While the Act has protected many children from sexual violence, it has also been misused by families.

India is also a signatory to the 1989 United Nations General Assembly resolution that recommended a minimum age of 18 years. “The provisions of the bill,” according to Gaurav Gogoi who is a Congress deputy leader, “stand in contrast to the Law Commission’s recommendation of making 18 the uniform marriageable age for men and women”.[8]According to AIMIM leader Asaduddin Owaisi, the bill is a step backwards. “At 18 years, a girl can choose a prime minister, have a live-in relationship, and have sexual relations, but the government is denying her the right to marriage”, Owaisi said. When it comes to this amendment, the blind spot regarding marital rape is also a dilemma. An ICRW research conducted in India states that “girls who married before age 18 reported experiencing physical violence twice as often, and sexual violence three times as often as girls who married at a later age”.[9]The Supreme Court ruled in the Independent Thought v. Union of India (2017)[10] that a man engaging in sexual activity with his wife under 18 constitutes rape under “Section 375 of the Indian Penal Code, 1860”. Husbands married to adult women, on the other hand, are immune from charges of marital rape.

Analysis

In my opinion, the legal age of marriage should be 18 for both men and women in our country. Young Indians between 18 and 21 can vote, drive, and represent the country, have abortion rights, and are considered adults. So, the appropriate solution in India should be to establish a minimum marriage age of 18 for both men and women, regardless of their religion. But changing only the legal age will not bring about the transformation required in our country. Due to personal circumstances and social stigma, raising the age may not deter women from marrying young. To safeguard women’s rights throughout the country, it is essential to develop and execute rules and regulations that aid women in obtaining their education, as well as to raise awareness about the importance of financial and educational autonomy, as well as the repercussions of underage marriages. This would surely motivate families to support female child education and work, as people will be more likely to support girl child education and employment if they understand why early marriages are risky and education is necessary.

Conclusion

Although the government saw this decision as a step forward in advancing women’s human and legal rights, it is difficult to ascertain how well it will function and whether it will be beneficial. The country must fight a long and tough battle before Indian women achieve equality with men, regardless of caste, creed, religion, or socioeconomic status.

Author(s) Name: Varsha Devarakonda (Symbiosis Law School, Pune)

References: 

[1] International Institute for Population Sciences, National Family Health Survey (NFHS-5) (2019-21) <https://iipsindia.ac.in/content/national-family-health-survey-nfhs-5-india-report> accessed 25 December 2022

[2] Child Marriage Restraint Act 1929, section 1(1)

[3] Hindu Marriage Act, section 5(3)

[4] Muslim Personal Law (Shariat) Application Law, 1937

[5] Prohibition of Child Marriage Act 2006, s 1(2)

[6] Nargis v State of Haryana (2020) SCC OnLine P&H 3481

[7] Hardev Singh v Harpreet Kaur (2020) 19 SCC 504

[8] ‘Bill to increase marriageable age of women to 21 years introduced in Lok Sabha’  (Economic Times, 21 December 2021) (https://economictimes.indiatimes.com/news/politics-and-nation/bill-to-increase-marriageable-age-of-women-to-21-years-introduced-in-lok-sabha/articleshow/88413213.cms) accessed 25 December 2022

[9] International Centre for Research on Women, Development Initiative on Supporting Healthy Adolescents <https://www.icrw.org/files/images/Child-Marriage-Fact-Sheet-Domestic-Violence.pdf> accessed 25 December 2022

[10] Independent Thought v Union of India (2017) 10 SCC 800