In August 2019, a public interest litigation (PIL), under Article 226, was filed in the Delhi High Court seeking abolition of the different minimum age for marriage of men and women, calling the distinction unscientific, discriminatory against women, and a patriarchal stereotype. The practice also violates the right to equality and the right to live with dignity, breaching Articles 14, 15, and 21 of the Indian constitution.
The petitioner claimed that more than 125 countries in the world have a uniform age of marriage for men and women. Therefore, the National Human Rights Commission, pursuant to the National Conference on Child Marriage, held in New Delhi on August 29–30, 2018, recommended that India must also bring uniformity in the minimum age limits, which are prescribed by law as 21 for men and 18 for women.
Provisions for Minimum Age
A minimum age of marriage has been ascertained by law to prevent child marriages and abuse of minors. So, personal laws of various religions, however, have their own standards, as per their customs.
For example, Section 5(iii) of the Hindu Marriage Act, 1955 sets 18 years as the minimum age for the bride and 21 years as the minimum age for the groom. Child marriages are not illegal but can be declared void at the request of the minor in the marriage. As per Muslim Personal Law, the marriage of a minor who has attained puberty is considered valid. However, boys before the age of 18, and girls before the age of 15 are not considered able to form a family and bear the heavy responsibilities and difficulties of family life.
The Special Marriage Act, 1954, and the Prohibition of Child Marriage Act, 2006 also prescribe 18 and 21 years as the minimum age of consent for marriage for women and men respectively, which were prescribed as an amendment to the Sarda Act in 1978. Earlier, in 1929, the Child Marriage Restraint Act accorded 16 years as the minimum age of marriage for women and 18 years for men.
And below 10, the Indian Penal Code, enacted in 1860, criminalised any sexual intercourse with a girl.
Different ages for men and women
The different legal standards for the minimum age of men and women to marry have been a subject of debate, as the laws are said to be rooted in patriarchy, supporting the stereotype that wives must be younger than their husbands.
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.
The Law Commission paper recommended that the minimum age of marriage for both genders be set at 18, noting that the difference in the 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 based on equality. However, there is a thought why difference between age is necessary but not obligatory. Women lose their sexual desires relatively earlier than men, so some gap of say 5–6 years or less seems to be appropriate. As a result, women reach menopause when the sexual desires of men have somewhat subsided, leading to the possibility of the successful marital relationship.
Rule of Thumb
Over a period of time, parts of the western world have almost finally settled on a rule of thumb—Half of your age + seven—as the acceptable age of bride.
For example, if man is 55, bride should be 35 years old with a 20-year difference. For a man of 38, woman should be 26 (12 years difference), and for a man of 35, bride should be 25 (10 years difference). It means the older the man, the more the difference.
In the end, two important Supreme Court rulings may also be mentioned.
In 2014, in National Legal Services Authority of India vs Union of India, the Supreme Court recognised transgenders as the third gender and said that justice is delivered with the “assumption that humans have equal value and should, therefore, be treated as equal, as well as by equal laws.”
In 2019, in Joseph Shine vs Union of India, the Supreme Court decriminalised adultery and said that “a law that treats women differently based on gender stereotypes is an affront to women’s dignity.”
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