RAISING THE LEGAL AGE OF MARRIAGE: AN ANALYSIS

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INTRODUCTION

On December 16, 2021, the Union cabinet approved the proposal of increasing the minimum age for a woman to marry be 21 years[1]. This change will be effective upon the amendment of the Prevention of Child Marriage Act, 2006. The Law commission of India in 2008 suggested the legal age of marriage to be 18 for the both the parties.[2] Presently, the minimum age to marry is 18 for the bride and 21 for the groom.[3]

MOTIVES BEHIND THE AMENDMENT

Referring to the statement of Objects and Reasons of the Prohibition of Child Marriage (Amendment) Bill, 2021, we find the following points as the guiding factors for the Central Government to introduce such a change:

• To bring all round welfare of women (physical, mental and reproductive health), the age of marriage needs to be uniform. Currently, the Christian, Parsi, Muslim, Hindu personal laws do not provide a uniform age for women.

• To secure the constitutional mandate of gender equality is marriageable age.

• To reduce the dependence of women on men due to early marriages.

• To lower maternal mortality rate, infant mortality rate, teenage pregnancies and improve nutritional levels and sex ratio at birth.

• To achieve sustainable development goals and principles under Convention on the Elimination of All Forms of Discrimination against Women.

• To amend the Prohibition of Child Marriage Act, 2006 and reinforce its overriding application on all other laws, custom, usage or practice governing the parties regarding marriage.

Statistics: According to the National Family Health Survey 4 (NFHS 4), 7.9% of women aged 15-19 years, were already mothers or pregnant at the time of the survey, with the prevalence higher in rural areas (9.2%) compared to urban areas (5%). The maternal mortality rate stands at 113 out of 100,000 live births, [2016-2018].[4] Infant Mortality Rate figures show that there occur 28.771 deaths per 1000 live births, which is a 3.61% decline from 2020. The Sex Ratio in India stands at 1020 females per 1000 males which is an improvement.[5]

Research on child marriage from the first decade of the 2000s was largely, often mistakenly, interpreted to suggest that child brides—girls who marry under the age of 18 years—faced a higher vulnerability to and higher rates of HIV acquisition than girls and women who married later. Once married, girls are likely to feel, and in many cases are, powerless to refuse sex. They are likely to find it difficult to insist on condom use by their husbands, who commonly are older and more sexually experienced, making the girls especially vulnerable to HIV and other sexually transmitted infections. It can be amount to regular exposure to domestic or sexual violence, and a pathway to commercial exploitation.[6]

Married girls are often pressurized to become pregnant immediately or soon after marriage, although they are still children themselves and unaware about sex or reproduction. An early pregnancy before a girl’s body is fully mature is a major risk to both mother and baby. Complications of pregnancy and childbirth are the main causes of death among adolescent girls ages 15-19 years old in developing countries. Among the disabilities associated with early childbirth is obstetric fistula, an injury which leaves girls in constant pain, vulnerable to infection, incontinent, and often shunned by their husbands, families and communities.[7]

ANALYSING THE EFFECTIVENESS OF PROHIBITION OF CHILD MARRIAGE ACT (PCMA), 2006

In 2006, the overall incidence of child marriage, i.e., marriage before 18 years of age, was 44.5%. It was 52.5% in rural areas and 28.1% in urban areas. The prohibition of child marriage act (PCMA), 2006 completes 16 years and we shall delve into its impact. A survey carried out by UNICEF in 2018 states that 7% of girl children marry by the age of 15 and 27% marry before the age of 18. The prevalence of child marriage is confirmed by this survey in as late as 69 years since the commencement of the Constitution.

The existing law for prohibition of child marriage (Act of 2006) was passed as an amendment to the Act of 1978 and it increased the age of marriage from 15 to 18 for brides and from 18 to 21 for bridegrooms. A significant reduction in the instances of child marriage was observed after this amendment but the figures have been stagnant in the past 5 years. In 2020, only 785 cases were booked under the PCMA Act, even though data suggests that one in four women in India is still getting married under the age of 18.[8] Clearly, the law is not being effectively used to stop or reduce the number of early marriages from occurring. The PCMA was largely used to criminalise self-arranged marriages, instead of targeting coerced/forced marriages of underage girls.

It increased the levels of punishment handed out to offenders to a fine of one lakh rupees and an imprisonment term of two years. It also introduced Child Marriage Prohibition Officers who were officials entrusted with the task of preventing child marriage and ensuring that the provisions of the Act were not violated. The Act also allowed ex-parte interim injunctions to be issued by the Magistrates so as to stop child marriages. Undoubtedly, these provisions have a positive attitude towards reducing child marriages. But some serious loopholes have been discovered. One such loophole is that PCMA, 2006 does not automatically render child marriages void but makes it voidable at the option of the concerned party. It is not a sufficient remedy for a girl child to avoid marriage after attaining the age of 18. There is a serious possibility of permanent damage to psychological and physical faculties of the child as a result of sexual exploitation.

The amendment does not propose any change in the implementation process. The present Act failed to enforce the legal age of marriage as 18, this casts a doubt on the amendment as well. The status of marriage will remain voidable. Any child conceived or born of such wedlock shall be deemed to be a legitimate child for all purposes.

WHAT TO EXPECT FROM THIS AMENDMENT?

The legal age of women to marry is proposed to be raised to 21 years on the recommendation of the task force led by Jaya Jaitly. She remarked that the rationale behind such a change is not to control India’s population as the fertility rate is already declining. The real reason is to truly empower women and achieve gender equality. The emphasis would be on access to education and livelihood.[9]

“We saw that it is there except in the law on marriage. When it comes to marriage, you put a girl in a disadvantage in terms of accessing opportunities because the law is already embedding a message to her that you need to do that only till you are 18 because after that you have another job to do. So that itself was a very powerful motivating factor for us (to suggest the recommendation).”[10]

NEGATIVE SIDE OF RAISING THE LEGAL AGE OF MARRIAGE/ DOES IT MEAN TRUE EMPOWERMENT?

Marriage in India is subject to various social norms and customs which are unique to each community. Likewise, early marriage is the most prevalent custom. It is believed that a woman’s honour would be protected only if she is married and she will be safe from unwanted attention from other men or from sexual violence for that matter. A lower dowry and lesser chances of elopement are assured in early marriages.

One cannot expect these deep-rooted norms to relax just by increasing the legal age of marriage for women. Also, true empowerment of women will be achieved when other important aspects of a woman’s life are juxtaposed with this change. We shall now analyse the following demerits of increasing the age of marriage from 18 to 21 years for women.

1.         Anomaly in the declining figures of Child Marriage

While child marriage has declined, it has been marginal: from 27% in 2015-16 to 23% in 2019-20, according to NFHS 5. The decrease was, however, significant in NFHS 4, from 47% in NFHS 3. Experts believe that limited access to higher education for girls is contributing to the early marriages.

2.         Poor quality and limited access to education

Due to poor quality of education, lack of infrastructure like toilets, prevalence of sexual harassment, poverty, girls end up dropping out of schools. According to NFHS-4 the median age at first marriage for women increases from 17.2 years for women with no schooling to 22.7 years for women with 12 or more years of schooling[11]. According to The Tribune, women’s education could lead up to 60% fewer women getting pregnant under the age of 17.[12]

Kalpana Kannabiran, Sujit Kumar Mishra, and S Surapa Raju recognise that girls’ access to education has long been curtailed because of an insistence on marriage, primarily before they turn 18.[13] To investigate the relationship between marriage and education, they conducted a comprehensive quantitative and qualitative study in Telangana and Andhra Pradesh. One key finding is that girls who stayed in school for a longer period of time were likely to marry at a later age. They also found that education improved their knowledge about laws, including those on marriage and rights. A diversified and inclusive National Curriculum Framework is needed to cater to the modern needs of education. It seems that vocational courses for women are still traditional like tailoring, typing etc., which makes them ready for ill-paid jobs in the unorganised sector. This will only serve to heighten inequalities by caste, class and gender, by further restricting the access of poor girls, Dalits and other marginal groups to higher education, and decreasing their representation at this level.[14]

3.         Age of majority is 18 years.

According to the Majority Act, 1875, the age at which a person attains majority is 18 years.[15] This is the age at which we can cast our vote, get a driving license, purchase property, open a bank account. It is also the age where one can give free consent for sexual activity.[16]

An absolute ban on marriages below the age of 21 will lead to more cases of elopement and criminalisation of love marriages as well as inter caste marriages. It just enforces the patriarchal control over a young woman’s life.

4.         An attempt to divert the citizens from the failed efforts of the Government.

In 2020-21, the central government employed 3.31 million people. This was lower than the 3.33 million people employed in 2013-14 or the 3.32 million employed in 2012-13. The central government employment had decreased to 3.28 million in 2017-18[17]. It has improved slightly since then but, it is still lower than it was seven years ago.

The government seems less inclined to spend that it can. During April-November 2021, while tax collections rose by 65% and y-o-y and non-tax collections increased 80% y-o-y, central government expenses increased by only 9%.[18] Evidently, the government is unwilling to spend at a rate that matched its revenue growth rate. spending on schemes is not enough. Spending on more toilets, is pointless if the government cannot assure sanitation service.

CHANGES NEEDED FOR EFFECTIVE IMPLEMENTATION

For the better implementation of PCM Amendment Bill, 2021, the following changes/amendments are required-

According to the Hindu Marriage Act, 1955, Parsi Marriage and Divorce Act, 1936, Special Marriage Act, 1954 and the Indian Christian Marriage Act, 1872, the age of marriage is 18 for females and 21 for males. No personal law of any community in India declares child marriage as invalid. Only the Special Marriage Act of 1954 declares child marriage to be void. under the Hindu Marriage Act, marriage of a minor is valid. Muslim Law recognises the onset of puberty as the age of marriage. a minor can get married if contracted by his legal guardian.[19] The only sanction prescribed against such marriages was noticed to be a punishment prescribed under Section 18 of the said Act which was to the extent of 15 days and a fine of Rs.1,000/-. With registration not being compulsory, one cannot expect to get the real number of child marriage cases. Hence, for PCMA Amendment Bill to be effective, there needs to be an amendment in the Personal Laws. The State needs to ensure that there will not be any loopholes this time.

CASE LAWS

  1. Lajja Devi v. State and Ors.[20]

Prohibition of child marriage act is secular in nature and overrides all barriers of personal laws. Thus, whatever be personal laws, child marriages are prohibited under this Act.

  • Hardev Singh v. Harpreet Kaur and Ors.[21]

According to the literal interpretation of Section 9, it states that if a male is below the age group of 18-21 years and if the female is above 18 years, and they contract marriage, the adult female will not be punished and the male who is a child himself (below 21 years of age) will be punished as per Section 9 of the Prohibition of Child Marriage Act, 2006. The Court observed that the above interpretation is against the object of the Act as borne out in its legislative history.

This Act was passed with the motive to provide protection to child brides in particular. It was also noted that child marriages take place where husbands are much older than the girl child thereby hampering their development. The Court also stated that it is essential that Section 9 of Prohibition of Child Marriage Act, 2006 should be interpreted in the backdrop of the gender discrimination and violence against females.

Thus, Supreme Court inferred that the reason behind punishing male adults who contract child marriage is to protect minor female children. The Act nowhere conveys its intention to punish a male aged between 18-21 years contracting a marriage with female adults. It provides recourse to the male who is a child to get the marriage annulled under Section 3 of the Prohibition of Child Marriage Act, 2006. The Court in conveying the same resorted to the marginal note provided under Section 9 “male adult above 18 years of age marrying a child”.

  • Independent Thought Co. v. Union of India[22]

The petitioner approached the Supreme Court of India by filing a writ petition under article 32 of the Constitution to emphasize the violation of the rights of the young girls who are married before they attain the age of 18 years. The petitioner contended that Exception 2 to section 375 of the Indian Penal Code, 1860 is violative of Articles 14, 15 and 21 of the constitution. Exception 2 states that if a man has sexual intercourse with his wife who is above 15 years old and below the age of 18 years with or without her consent, it will not be considered as Rape.

The court finally struck down Exception 2 to Section 375 of IPC which gave immunity to the husband from the charges of rape and have sexual intercourse with her wife with or without her consent being that the wife is above 15 years of age, but the court read down this exception and now it will illegal if a husband has sexual intercourse with her wife who is above 15 years of age. The Court observed that the non-consensual, sexual acts committed by a husband against his underage wife are punishable under any other laws, even to the same extent as rape under the IPC[23].

  • Saraswati Kumar v. Lokesh Kumar[24]

The petitioner was a minor aged 13 years seeking annulment of her marriage under Section 3 of the PCMA, 2006. The marriage was solemnised when she was a minor and she was forcefully taken away from the custody of her parents. The petition for annulment was filed by her represented by her father in the family Court, Bangalore. Upon receiving notice from the Court, the respondent appeared and stated that he had no objection to the annulment being allowed. The Hon’ble Court, after multiple detailed hearings, passed a decree holding the child marriage to be null and void as per Section 3 of the PCMA and Section 5(iii) of the Hindu Marriage Act, 1955.

CONCLUSION

Child marriage has existed in developing countries since the very inception of the institution of marriage. In India, various communities have their unique customs and traditions but the most common practice is that of early marriage. The first attempt at curbing child marriage was the enactment of the Child Marriage Restraint Act, 1929 which increased the legal age of marriage. It was replaced by the Prohibition of Child Marriage Act, 2006. In 2021, the Prevention of Child Marriage (Amendment) Bill, 2021 was introduced in the Parliament with the view to increase the age of marriage for women to be 21. This amendment, if passed, will have overriding effect on the personal Laws. In my opinion, for the PCM Amendment to be effective, all the personal laws need to be amended as well. But it is obvious that the State will face a tremendous challenge from all the religious communities. Simultaneously, women’s access to higher education, jobs, unconventional vocational courses, health care and sexual awareness require immense development by the State. It has to be ensured that this Amendment will not be used to criminalize self-arranged marriages but forced ones. On one hand, it casts reasonable doubt on the age of consent with is 18 years for all. On the other hand, the number of child marriages is appalling and needs to be curbed. Hence, a careful analysis reveals a whole lot of contradictory questions which the Legislature and the Judiciary will face while hearing cases.


[1] The Prohibition of Child Marriage (Amendment) Bill, 2021 (Bill No. 163 of 2021).

[2] Law Commission of India, “205th Report on Proposal To Amend the Prohibition of Child Marriage Act, 2006 and Other Allied laws” (February, 2008).

[3] The Prohibition of Child Marriage Act, 2006 (Act No. 6 of 2007).

[4] Government of India, “National family Health Survey-5” (Ministry of Health and Family Welfare, 2019-21).

[5] Ibid.

[6] Suzanne Petroni and Others, “On Understanding the Relationships Between HIV and Child Marriage: Conclusions from an Expert Consultation” 64 Journal of Adolescent Health 694-696 (2019).

[7] Ibid.

[8] National Crime Records Bureau, “Report on Crime in India, 2020” (2020).

[9] Sangeeta Barooah Pisharoty, “We Were Progressive In Our Thinking: Jaya Jaitly takes on Women’s marriage Age Move Criticisms”, The Wire, 18.12.2021, available at <https://thewire.in/women/we-were-progressive-in-our-thinking-jaya-jaitly-takes-on-womens-marriage-age-move-criticisms&gt; (18.02.2022)

[10] Ibid.

[11] 5 Reasons Changing the Minimum Age of Marriage is a Bad Move, India, available at: https://www.oxfamindia.org/blog/5-reasons-changing-minimum-age-marriage-bad-move (last visited on February 18, 2022).

[12] Women’s Education in India: What you Need to Know, United States of America, available at: https://borgenproject.org/womens-education-in-india/#:~:text=Having%20equal%20access%20to%20education%20is%20crucial%20to%20alleviating%20poverty.&text=According%20to%20The%20Tribune%2C%20women’s,due%20to%20increased%20career%20avenues (last visited on February 18, 2022).

[13] Kalpana Kannabiran, Sujit Kumar Mishra, S. Surapa Raju, “Investigating the Causes for Low female Age at marriage” 52 Economic and Political Weekly (2017).

[14] Ibid.

[15] The Majority Act, 1875 (Act 9 of 1875), s. 3.

[16] The Protection Of Children from Sexual Offences Act, 2012 (Act 32 of 2012).

[17] Employment and the Government, India, available at https://www.cmie.com/kommon/bin/sr.php?kall=warticle&dt=20220131131123&msec=536 last visited on February 12, 2022).

[18] Id. at 4.

[19] Dr. Paras Diwan and Peeyushi Diwan, Family Law (Allahabad law Agency, Faridabad, 2018).

[20] 2012 Cri.LJ 3458

[21] AIR 2020 SC 37

[22] AIR 2017 SC 4904

[23] The Protection Of Children from Sexual Offences Act, 2012 (Act 32 of 2012), s.6.

[24] 2018

Author: Kusumita Banerjee, Department of Law, University of Calcutta (Hazra Campus)

Editor: Kanishka VaishSenior Editor, LexLife India

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