The Prohibition of Child Marriage (Amendment) Bill, 2021 was introduced by the Union Minister of Women and Child Development in the Lok Sabha in December 2021. In view of the vociferous opposition to the bill in the House, it was decided to refer it to a parliamentary standing committee.
Marriage is practically near universal in India, and child marriages continue to prevail despite legislations. Over time, however, the practice of child marriage has shown a declining trend. According to a study by UNICEF of women in the age-group 20-24, marriage before the age of 18 and before the age of 15 had dipped significantly by 2015. However, the recent COVID-19 pandemic, it is reported, could have led to an increase in the number of girl children being married off. UNICEF projects that up to 10 million more girls are at risk of child marriage in the decade 2021–2030 because of the pandemic. The root causes would be the slowdown in programme implementation and the economic downturn with the resultant effect on household poverty. India would not be free of this spike in child marriages due to the pandemic. This is one aspect of the background against which we have to consider the new bill on legal marriage age.
It may be recalled that it was in 1929 that, at the instance of a judge and politician, Har Bilas Sarda, an attempt was made at getting the British rulers of India to pass legislation to restrain child marriages in India. The move was supported by women’s associations. Consequently, the Child Marriage Restraint Act, 1929 (popularly known as the Sarda Act) was enacted, according to which minimum age of marriage for girls was to be 14 years, and for boys, 18 years. Then, in 1949, the minimum marriage age for girls was raised from 14 years to 15 years through an amendment in the act. It was only in 1978 that the act was further amended to increase the minimum age of marriage for girls to 18 years, and that for boys to 21 years. The offence of child marriage was also made cognizable. In 2006, the Prohibition of Child Marriage Act was passed. Significantly, child marriages were not void automatically; they were ‘voidable’. However, there are certain situations in which child marriages were void, such as when the marriage took place without parental consent.
Basically, a void marriage is one that is invalid from the very beginning, and would not require any formalities to be terminated. A voidable marriage would become invalid only after one party petitions a court to have the marriage annulled or declared void.
Rationale
According to the statement of objects and reasons accompanying the 2021 amendment bill, the government thinks the reform is necessary to curb child marriages which are still prevalent; secure the constitutional mandate of gender equality in marriageable age among men and women and in other aspects; ensure greater gender equality and reduce the disadvantages suffered by women in terms of higher education and employment; work in favour of lowering maternal mortality rate and infant mortality rate and improvement of nutrition levels and sex ratio at birth, as these would promote possibilities of responsible parenthood for both father and mother, making them more capable of taking better care of their children; bring down the incidence of teenage pregnancies, which are not only harmful for women’s overall health but also result in more miscarriages and stillbirths; and to reduce discrimination against women that comes in the way of achieving sustainable development goals.
The bill aims at addressing the issues of women in a holistic manner, “as a measure for empowerment of women, gender equality, increasing the female labour force participation, make them self-reliant and to enable them to take decisions themselves”. In order to achieve these objectives, the bill proposes to (i) amend the Prohibition of Child Marriage Act, 2006, to reinforce its application overriding all other existing laws, including any custom, usage or practice governing the parties in relation to marriage; (ii) bring women at par with men in terms of marriageable age; (iii) prohibit child marriage irrespective of any law, custom, usage or practice governing the parties; (iv) declare that provisions of the Act shall have overriding effect over every other law, custom, usage or practice governing the parties; and (v) make consequential amendments to the other laws relating to marriage.
Provisions of the 2021 Bill
The 2021 bill seeks to amend the Prohibition of Child Marriage Act, 2006. Its primary objective is to raise the age of marriage for women from the present 18 years to 21 years, at par with men. It seeks to achieve this by amending the definition of a ‘child’ in Section 2(a) of the 2006 Act to mean a male or a female who has not completed 21 years of age.
The bill proposes to override seven personal laws—the Indian Christian Marriage Act 1872; the Parsi Marriage and Divorce Act 1936; the Special Marriage Act 1954; the Hindu Marriage Act 1955; the Hindu Minority and Guardianship Act 1956, the Hindu Adoption and Maintenance Act, 1956, and the Foreign Marriage Act 1969. It adds a provision after Section 14 of the 2006 Act that the “provisions of this Act shall have effect, notwithstanding anything contrary or inconsistent therewith contained in any other law for the time being in force, including any custom or usage or practice governing the parties.”
The amendment bill also increases the window for a ‘child’ to file a petition to declare a child marriage void. At present, under Section 3(4) of the 2006 Act, both women and men are allowed two years after they reach majority to file for declaration of child marriage as void. The amendment bill of 2021 proposes to extend this window for both the woman and the man to five years after attaining majority, i.e., now a woman or a man may petition a court to render the child marriage void before attaining 23 years of age.
Jaya Jaitly Task Force Recommendations
It may be recalled that the decision of the government to introduce this amendment bill is based on the recommendation of a 10-member task force set up in June 2020 by the Government of India and chaired by Jaya Jaitly. The task force was required to examine the correlation of age of marriage and motherhood with (a) health, medical well-being and nutritional status of mother and neonate/infant/child, during pregnancy, birth and thereafter, (b) key parameters like infant mortality rate (IMR), maternal mortality rate (MMR), total fertility rate (TFR), sex ratio at birth (SRB), child sex ratio (CSR), etc., and (c) any other relevant points pertaining to health and nutrition in this context. It was to suggest measures for promoting higher education among women and suitable legislative instruments and/or amendments in existing laws to support its recommendations.
The report of the task force chaired by Jaya Jaitly, submitted to the Prime Minister’s Office, the Union Ministry of Women and Child Development, and the NITI Aayog in December 2020, recommended increasing the age of marriage for women to 21 years as delay in marriage has a positive impact on the financial, social and well-being of families, women, children, and society. The committee’s recommendations came after consultations with experts, young adults, young women and others who are likely to be affected directly by the decision. The committee also recommended that the government look into increasing access to schools and colleges for girls, including their transportation to these institutes from far-flung areas; skill and business training be enhanced; and sex education provided in schools. The said that unless these deliveries are implemented and women are empowered, the law on raising marriage age will not be effective. The committee further recommended that a comprehensive awareness campaign be undertaken to encourage social acceptance of the new marriage age proposed.
It has been clarified that the recommendation to raise the marriage age for women is not based on the rationale of population control (India’s TFR already showing a decline); it is more to do with women’s empowerment and gender parity.
Critical Analysis
The proposal to increase the age of marriage for girls has led to animated debate. Even though there is loud protest over the move, some support is also expressed for it.
In Support of the Move
Though the draft legislation proved to be contentious and had to be referred to a parliamentary panel for discussion, there is a body of opinion supporting the bill.
It is observed that increasing the minimum age of marriage would bring in gender-neutrality as well as greater access to education and livelihood for women. Most women are prevented from access to education and independent livelihood if they marry early and are forced to depend on their husbands for financial support. Increasing the legal age of marriage will give women more time and, thus, more opportunities to receive education or get jobs.
More importantly, it would work towards reducing the risks of early pregnancy among women. Early pregnancies are known to adversely affect the nutritional levels of mothers and their children, and their overall health and mental well-being. Shweta Khandelwal, additional professor at the Public Health Foundation of India, points out that young mothers are more susceptible to anaemia. Early marriage and early pregnancies are also associated with higher IMR and MMR.
There are studies to indicate a significant difference in the psychological well-being between females married before 21 years and those married at 21 years of age and above, with the latter showing higher levels of well-being, says Dr Renu Singh. In terms of intergenerational transmission of poverty, the stunting levels of children born to girls married before 21 was also higher compared to those married at age 21 and above. Data from the longitudinal study highlights that at age 26, only 29 per cent of those married at 21 years and above had two or more children, compared to 77 per cent girls married before 21 years of age, having given birth two or more children. Marriage of girls below 21 years of age is also seen to pose a major barrier to the empowerment of women with higher incidence of violence and limited decision-making, besides the perpetuation of inter-generational transmission of poverty.
There is no doubt that higher education and women’s participation in the labour market is the best way of empowering them. A rise in the age at marriage may provide women with opportunities to participate in the labour market before marriage, and this will make it be easier for them to continue to work even after marriage, says Arup Mitra, Professor, Institute of Economic Growth. “It also gives them greater bargaining power to deal with social evils like dowry.”
It is pointed out that there is no rationale for having different legal standards for age for men and women to marry. A stipulation of age difference between men and women in a marriage is part of the belief system in our society. It subscribes to a stereotype that women are more mature than men of the same age and, therefore, wives must be younger than their husbands, as a consultation paper of the Law Commission said. The international treaty on the Committee on the Elimination of Discrimination against Women (CEDAW) also says that laws that assume there are different physical or intellectual rates of growth for men and women should be abolished.
Another plus point of the bill is in the increase of the time allowed for filing petitions to declare a child marriage void.
Against the Move
Many activists for women and child rights and population experts are not in favour of an increase in the age of marriage for women.
The reasons for early marriage of women, says Purnima Menon, senior research fellow at the International Food Policy Research Institute, are poverty, low access to education and economic opportunities, and concerns of security. These issues have to be addressed if child marriages are to come down. It is pointed out that, even with the legal age of marriage for women at 18 years, child marriages continue to take place in India. As per the National Family Health Survey-5 (NFHS-5), child marriage has come down marginally from 27 per cent in 2015–16 to 23 per cent in 2019–20 in the country. But law alone cannot lead to a decline in child marriages; it is only when there are more educational and employment opportunities and awareness of the benefits and shortcomings of early marriage that child marriages will decline by choice.
The increased opportunities for education and jobs offered by the 2021 bill would only benefit women from advantaged families, mainly in the urban sector; it would not really help the women from the disadvantaged sections of society. It is unlikely that women from rural sectors and women from the lower income quartile would be able to avail of this benefit. Besides lack of awareness of their rights, these women are pressurised into marrying young due to custom and practical considerations. A very large proportion of early marriages happen in disadvantaged communities, such as scheduled castes (SCs) and scheduled tribes (STs). The National Family Health Survey (NHFS)-4 supports this view: the median age at marriage for women is 18.5 years for OBC, 18.4 for St, and 18.1 for SC. The law increasing marriageable age for women is not likely to have much impact on early marriages; under-age marriages in these communities would probably take place underground.
The Prohibition of Child Marriage Act is considered a special legislation and is applied over ‘general law’, though it does not clearly state that it would override general law. The Supreme Court has, in many cases, stated that all personal laws must follow the principles and regulations of the Constitution, though the interpretation by high courts vary. Critics of the bill point out that it will interfere with the provisions mentioned in the various personal and marriage laws regarding the age of marriage. It specially affects Muslim personal law that allows a minor to marry on reaching puberty, which is usually taken as 15 years. The bill, charge the detractors, is a clear move by the BJP-dominated government to hasten the establishment of a Uniform Civil Code.
A drawback of the amendment bill is that it does not change the provision in the existing law that makes child marriages in India only voidable and not void. As the law stands, child marriage can be declared void by a court only if the minor party petitions the court. Under the Prohibition of Child Marriage Act, persons involved in a forced child marriage can be punished. However, the detractors of the law have mistakenly contended that children born of underage marriage are illegitimate; the law says that such children would be considered legitimate.
Till 2017, the age of consent for physical relations for a girl was 18 years, but in the case of a child bride this age was 15 years. The Supreme Court, in a landmark verdict in 2017, held that in the case of a minor wife, the law would recognise marital rape. The immunity provided by the Indian Penal Code against charges of marital rape does not apply to husbands of minor girls (aged below 18 years) as the ‘consent’ of a minor is not considered to be valid. However, if a marriage of a minor is not automatically void, can a minor wife make claim of marital rape? The silence of the law on this issue is confusing to say the least.
As for the claim of bringing the ages of the men and women on par, why should the age of marriage for women be raised? It must be recalled that the Law Commission, in 2008, recommended a uniform age of marriage for boys and girls at 18. The Indian Majority Act, 1875, allowed persons to enter into contracts at the age of 18. The Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW) recommended 18 as the minimum age of marriage. Few countries have prescribed the legal age of marriage for women as 21. In China, it is 20, while in most countries it is 18.
It is strange that under the Prohibition of Child Marriage Act, a man of 21 is considered a ‘child’ and now a woman of 21 too would be a ‘child’. Persons of 18 years of age are considered mature enough to vote but they are seen as incapable of deciding to marry.
The increase in age, say critics of the bill, affects the autonomy of women, their freedom of choice to marry earlier. (But, in this context, one may well ask whether the autonomy of men is not affected by prescribing an age of 21 years for marriage. It may also be pointed out that, in our society, this freedom of choice for women is not all that prominent. If girls had autonomy, child marriages may not take place at all.)
The Criminal Law Amendment Act of 2013 raised the age of consent from 16 years to 18. Will this now be raised to 21 years? There are contradictions raised by the proposed amendment to marriage age. Who exactly is a child? As per Section 3 of the majority act, “Every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before.” As per the Protection of Children from Sexual Offences (POCSO) Act, a child is someone who is under the age of 18 years. As per the Right of Children to Free and Compulsory Education, a child is someone who is between the age of 6 to 14 years. Then, we have Section 2 of the Child Labour (Prohibition and Regulation) Amendment Act of 2016 defining a ‘child’ as a person who has not completed his 14th year of age or such age as may be specified in the Right of Children to Free and Compulsory Education Act, 2009, whichever is more; and an adolescent is a person who has completed his 14th year of age but has not completed his 18th year.
The Way Forward
Child marriages continue despite the existing law, but their incidence is also on a decline, as shown by the NFHS-5. In Uttar Pradesh, there has been a decline of some 5 per cent from 21.1 per cent in NFHS-4. In Chhattisgarh, the decline was from 21.3 to 12.1 per cent; in Haryana, a decline of 7 per cent was observed. Jharkhand, where 32.2 per cent of women had earlier been married before the age of 18, there was a decline of 5 per cent. Even though Rajasthan had a high 25.4 per cent of child marriages, the decline too has been sharp at 10 per cent. In fact, most states showed a marked decline.
It may not be quite correct to say that the amendment to raise the marriage age of women would lead to criminalisation of women’s sexuality. A law to prescribe a minimum age of marriage cannot be considered a restriction on women’s sexual choices; it would well do to ask whether minor girls pushed into marriage are free to exercise their sexual freedom. It is necessary to be clear on what constitutes an illegal marriage, and such a marriage should be categorically made void at the very beginning.
The socio-economic realities have to be taken into account before a change is sought to be brought about. The patriarchal system is quite dominant in India. Most sections of society in India, even the educated and so-called ‘modern’, continue to consider girls to be an economic burden and a security liability, and the parents seek to push off the responsibility to the husband and his family at the earliest. This mindset is changing, but rather slowly. Efforts should be made to transform this attitude to girls. This is all the more necessary as marriage in no sure way of providing women with social protection. So many of these young girls face domestic violence and are unable to get out of abusive marriages because they lack the abilities to support themselves economically.
According to Bina Agarwal, Professor of Development Economics and Environment, Manchester University, raising the legal age of marriage is an indirect attempt to address other gender inequalities, health risks, and unpreparedness of the young girls. A more effective means of achieving results would be to provide financial incentives for girls to remain in school, increasing the range and number of jobs educated girls can get, and ensuring a safe environment through enough transport and hostel facilities. She points out that according to research, “parents are more likely to let girls finish school and delay marriage if they have good job prospects close to home. This will raise the girl’s age of marriage without legal measures.”
Legislation aimed at reform should not, of course, be rejected because the implementation of the law has not been taken seriously enough to be effective. However, there is a need to iron out the anomalies in the legal framework on who is a child and the contradictions between the various existent laws, and to remove the shortcoming of not considering an under-age marriage void at the first instance.
Policy should be centred round improving the implementation. Awareness campaigns at the grass root level must be undertaken among the community. An effort should be made to create catalysts of change within these communities. An attempt should be made to bring religious leaders on board to influence people towards reform. At the same time, the government should use the means available to it to ensure that girls are provided access to secondary and higher education as well as opportunities to develop skills; this alone will serve to empower them to make more informed choices without bowing down to the will of others.
If legislation has to be effective in bringing about change in society, the society itself has to be first made ready to accept progressive legislation.
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