Imposing a marriage age limit

Indian Society Issues, and New Proposal

Source: The Indian Express

Context:

The author talks about the Union govt decision to raise the minimum marriage age for women.

Editorial Insights:

Recently the Union Cabinet gave its approval to a proposal for raising the minimum marriage age for women from 18 to 21.

About Minimum Age of Marriage in India:

Every religion has its personal laws that govern marriage and other personal practices for communities prescribe certain criteria for marriage, including the age of the bride and groom.

For instance, Section 5(iii) of The Hindu Marriage Act, 1955, sets a minimum age of 18 for the bride and 21 for the groom.

This is the same for Christians under the Indian Christian Marriage Act, 1872, and the Special Marriage Act.

For Muslims, the criteria are attaining puberty, which is assumed when the bride or groom turns 15.

Need for a minimum age:

Mainly to outlaw child marriage through special legislation such as the Prohibition of Child Marriage Act, 2006 and the Protection of Children from Sexual Offences Act, 2012.

Under the Child Marriage Prevention Act, any marriage below the prescribed age is illegal and the perpetrators of forced child marriage can be punished.

Provisions & Procedures for Preventing Child Marriages:

• Child marriages are illegal but voidable at the option of the minor party.
• This means the marriage can be declared void by a court only if the minor party petitions the court.
• This is to ensure that the rights of the minor, especially the girl, are not taken away in marital homes later on.
• However, if a court finds a minor was coerced into marriage by parents or guardians, the provisions of the Juvenile Justice (Care and Protection of Children) Act come into effect to keep the custody of the minor until he or she attains majority and can make a decision on the marriage.

Raising the minimum age of marriage impact:

Primarily, the age limit in the Prohibition of Child Marriage Act will have to be changed.

It is followed by necessary changes in personal law like The Hindu Marriage Act, the Indian Christian Marriage Act, and the Special Marriage Act.

However, changes in the Muslim law could raise a significant legal issue:

• The Prohibition of Child Marriage Act does not contain any provision that explicitly says the law would override any other laws on the issue.
• And there is an obvious discrepancy in the letter of the law between the Prohibition of Child Marriage Act and Muslim law on the minimum age of marriage
• Further, the Supreme Court, in a landmark 2017 verdict, has held that in the case of a minor wife, the law recognizes marital rape.
• Husbands of minor women, cannot enjoy the blanket immunity that the Indian Penal Code provides in Exception 2 to Section 375 against charges of marital rape.

What did the Judiciary say regarding the issue?

Muslim law is a mere codification of Shariah law.

In Shayara Bano v Union of India, the case in which the Supreme Court declared the practice of instant triple talaq as unconstitutional.

The court said all personal laws will have to fall under the constitutional framework and will be subject to public order, morality and health.

However, there are several differing verdicts from high courts on this issue.

In 2021, the Punjab and Haryana High Court granted protection to a Muslim couple (a 17-year-old girl married to a 36-year-old man), holding that theirs was a legal marriage under personal law.

The HC examined provisions of the Prohibition of Child Marriage Act but held that since the special law does not override personal laws, Muslim law will prevail.

In other cases, the Karnataka and Gujarat High Courts have held that the 2006 special law would override personal laws and have sent the minor girl to a care facility.

Experts suggest the minimum age of marriage can be justified under public health.

The Rationale Behind Raising the Minimum Age of Marriage:

• Early marriages impart education & employment opportunities of girl children mainly.
• Its decision will help in empowering women & bring gender parity.
• It enhances the access to education and livelihood for the girl child.
• There is a need to reduce the risks of early pregnancy among women.
• Early pregnancy is associated with increased child mortality rates and affects the health of the mother.
• It will make them self-financial and give them a lot of power in the domestic sphere as well.
• Despite laws mandating minimum age and criminalizing sexual intercourse with a minor, child marriages are very prevalent in India.

Criticism of the decision:

Experts have been opposing a raised age of marriage on two broad counts.

First, the law to prevent child marriages does not work because:

While child marriage has declined, it has been marginal, from 27% in 2015-16 to 23% in 2019-20, according to National Family Health Survey (NFHS) 5.

The marriage age at 18 was set in 1978, but child marriage started to decline only in the 1990s when the government stressed primary education of the girl child and took measures to reduce poverty.

The experts said that often the girl child drops out after primary school simply because she has no access to higher education, and is then married off.

The second objection being raised is the criminalization of a large number of marriages that will take place once the law comes into effect.

While 23% of marriages involve brides under age 18, far more marriages take place under age 21.

The median age at first marriage for women aged 20-49 is 19 years in 2015-16.

Concluding Remarks:

For any society to make sustainable progress it is necessary to empower women and for that two most important weapons are quality of education and skills and for this, they should not be under any pressure to get married early.

Therefore, the current decision to raise the minimum age of marriage for women is a significant step in the direction of women's empowerment.