The minimum age for women in India was for the first time prescribed in the Sarda Act (later renamed as Child Marriage Restraint Act). In the year 1978, by way of amendment, the age was raised for men and women: 21 and 18 respectively. The position remained the same until the government brought The Prohibition of Child Marriage (Amendment) Act, 2021, hereinafter referred to as PCMA.
Background The minimum age for women in India was for the first time prescribed in the Sarda Act (later renamed as Child Marriage Restraint Act). In the year 1978, by way of amendment, the age was raised for men and women: 21 and 18 respectively. The position remained the same until the government brought The Prohibition of Child Marriage (Amendment) Act, 2021, hereinafter referred to as PCMA. PCMA does not render marriage by minor void, but voidable. It means that the minor can remain in or opt-out of marriage. However, it allows the minor to exercise ‘Option of Puberty’, that is, the right to nullify the marriage till two years after attaining majority. Karnataka has amended the PCMA to make marriages void ab initio, unfortunately, it has not had much impact because the government has not advertised it enough to create awareness.
The recent numbers National Family Health Survey revealed that child marriage has come down marginally to 23 per cent in 2019-20. The government through the amendment has been pushing to bring this number further down. Moreover, UNICEF released a report “COVID-19: A threat to progress against child marriage” warning that school closures, economic stress, service disruptions, pregnancy, and paternal deaths due to the pandemic are putting the most vulnerable girls at increased risk of child marriage. It further stated that an estimated 650 million girls and women alive today were married off in childhood, about half of those occurring in Bangladesh, Brazil, Ethiopia, Nigeria and lastly, India. As per the data presented in the Lok Sabha, the number of child marriages reported across the country increased from 523 in 2019 to 785 in 2020 due to the pandemic. Tamil Nadu and Karnataka have seen a steep increase in the number of child marriages in 2020 as per the data collected by the National Crime Records Bureau.
Objective of the Amendment The Bill proposed to – override any existing laws, customs, usage or practice governing in relation to marriage; bring women at par with men in terms of age of marriage and prohibit child marriage. The Bill aims to address the issues of women in a holistic manner, as a measure for the empowerment of women, gender equality, increasing the female labour force participation, making them self-reliant and enabling them to make decisions themselves.
In favour of the argument The following arguments are in addition to the objective of the Bill, as mentioned above. Gender Neutrality: this move can be the first step towards gender neutrality as it would make the minimum legal age for both the genders. Child marriage practice: Child marriage is an evil which is a reality in the remote parts of the country. It is often the result of entrenched gender inequalities, robbing young women of their childhood and threatening their health. They are more likely to experience domestic violence and less likely to remain in school. An early age of marriage, and consequently early pregnancy, also has impacts on the nutritional levels of mothers and their children, and their overall health and mental wellbeing. It also has an impact on infant mortality rate and maternal mortality rate, and the empowerment of women who are cut off from access to education and livelihood after an early marriage. Such a change in the age may act as a deterrent to outlaw child marriages. However, there is no scientific data to back this claim. Irregularity in personal laws – the Bill is in contradiction with the several laws which are currently prevailing in our country. It overrides personal laws of various religions that deal with marriage, often reflecting custom.
Against the argument Patriarchy: Senior Advocate Indira Jaising tweeted – it is highly patronizing and patriarchal to call someone over the age of 18 a ‘child’, ready and fit to vote but not to marry – is this constitutional morality? Going by the argument provided by Ms Jaising, it is also to be noted that any person of 18 years can enter into a contract under the Indian Contract Act, 1872. Hence, we are recognizing that a person has the mental capacity to make decisions that will affect her life commercially or as a citizen, but at the same time she does not have the right to make decisions about her personal life. No evidence: there is no evidence that reducing the age of marriage will benefit women in any way. It is important that women should not be married at an early age for them to gain social and economic status. A legal loophole – the law can be used by parents against their daughters who may have marriages of their choice and become a tool for parental control. A recent example of this is – the Haadiya case, where an adult woman’s decision to marry was challenged by her parents. The fundamental right that is bestowed upon the girls will be denied until the age of 21 years. Other issues could include inconsistency in already existing legal provisions, for example in the IPC – Exception 2 to Section 375 which states that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” And section 375 states that it is rape when the act has been committed with or without the consent of the woman under eighteen years of age. What would be the impact of the amendment on these provisions?
Conclusion Raising the legal minimum age can be a good move but as discussed earlier in the article, there is no proof of whether it would lead to a decrease in child marriages or a better standard of living for women. It all comes down to widespread awareness through various ways of the importance of their education, better health facilities and providing access to employment opportunities. Strict implementation of the existing laws is another prime example of discouraging child marriage practices. However, it cannot be denied that legislation can be used as a tool to influence social institutions. The proposal may take away the societal and parental pressure to get girls married soon after turning 18. While the amendment has its dissidents, it has been welcomed by young girls who have been campaigning in the northern state of Haryana. Any law should be judged on the basis of its objective and intent. While the amendment does raise some important points, it lacks the answers to quite a few questions. For example, it does not address the deep-rooted causes of early marriage such as poverty, deep-seated patriarchal attitudes, the lack of access to education and the effect of the pandemic.