Raising the legal age of marriage for women – Explained, pointwise

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Introduction

Recently, the Union Cabinet has passed a proposal raising the legal age of marriage for women from 18 to 21 years — the same as men. The government sees the proposed legislation as a strong measure to bring women on equal footing with men, in keeping with the vision of the Right to equality. The amendment in relation to marriageable age will be effective two years after the Bill receives the assent of the President.

The government has taken this decision based on the recommendations of the Committee headed by Jaya Jaitly. The committee has said that the recommendation is not based on the rationale of population control (India’s total fertility rate is already declining) but more on women’s empowerment and gender parity. But there are certain concerns associated with raising the legal age of marriage for women.

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What is the current minimum age of marriage for women?

Socially, the age at which girls are typically expected to marry has long been influenced by their age of puberty. So, the marriageable age for women in the 19th century was around 10 years. The Sharda Act of 1929 set the minimum age of marriage for girls at 14 years and for boys at 18 years. Later, the age of marriage for women was increased from 15 to 18 in 1978 by amending the erstwhile Sharda Act of 1929.

For Hindus, 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.

For Muslims, the marriage of a minor who has attained puberty is considered valid. This is assumed when the bride or groom turns 15.

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.

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

For the new age of marriage to be implemented, these laws have to be amended.

Note: India had ratified the Convention on the Elimination of All Forms of Discrimination Against Women in 1993. Article 16 of the Convention strictly forbids child marriage and asks governments to identify and enforce the minimum marriage age for women.
What are the reasons mentioned by the Jaya Jaitly committee to raise the legal age of marriage?
Read here: Recommendations given by the Jaya Jaitly committee
What are the benefits of raising the legal age of marriage for women?

Many girls will be able to complete their education up to graduation and employability will increase, decrease in maternal mortality as well as infant mortality and reduction in child marriage will occur.

There is a significant difference in the psychological well-being of child brides and those who got married at age 21. There is a significant difference in the mean wages of child brides and those getting married after 21 years of age. So, increasing the age will result in psychological well-being and financial well-being.

Scientifically, the frontal lobe region in the brain that is responsible for decision-making develops in the years between 18 and 20 and attains maturity only by the age of 25. So, until the age of 25, the risk management and long-term planning abilities of the human brain do not kick in. So, increasing the marriage age will not just be about decision-making but also helps in better emotional regulation and maturity. If so, the minimum age for men and women to get married should be 25.

A recent Business Standard analysis had found that households with college-educated women were more likely to have better nutrition and better access to government services.

According to UNICEF, India is home to every third child bride in the world, with more than 100 million of them getting married even before they turn 15. Given the aim to eliminate child marriage by 2030 as part of the Sustainable Development Goals, this move is in the right direction.

Have a ripple effect: Research shows that for children, an environment where mothers are educated, qualified or working is very different from an environment where they are not. So, empowering women will empower families, empower children.

Help in achieving SDG: SDG 5 categorically asks nation-states to formulate policies to achieve gender equality. The age difference for women(18) and men (21) have no justifiable logic. Today, women stand on equal footing to men in all possible spheres of life.

What are the legislative challenges in raising the legal age of marriage for women?

Challenges in introducing changes in the personal laws: The Prohibition of Child Marriage Act does not contain any provision that explicitly says the law would override any other laws on the issue.

Even Court’s have different opinions regarding personal laws and special law. For instance, In February this year, the Punjab and Haryana High Court granted protection to a Muslim couple (a 17-year-old girl married to an adult 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. So, enacting the Child Marriage Prohibition Bill will trigger personal law vs secular law debate.

Blindspot with respect to Marital rape: In the Independent Thought v. Union of India (2017) case, the Supreme Court has recognised the marital rape of a minor wife. On the other hand, husbands of adult women can enjoy blanket immunity against charges of marital rape. This is a blind spot in the law that needs to be rectified if the legal age for marriage is raised.

Child marriages are illegal, but not void in India: 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.

So, Child marriage is not void. The marriage can be declared void by a court only if the minor party(minor women/her relatives) petitions the court.

For instance, The Punjab and Haryana High Court has ruled that the marriage of a minor will be deemed as valid if the person who was underage at the time does not call it void on attaining the age of majority.

Read moreElopements most prosecuted under child marriage law: study
What are the arguments against raising the legal age of marriage for women?

Pushing a large portion of the population into illegal marriages: While 23% of marriages involve brides under age 18, far more marriages take place under age 21. Further, the median age at first marriage for women aged 20-49 increased to 19 years in 2015-16 from 17.2 years in 2005-06. But still, that remains under 21.

Interstate variation of marriage age: According to SRS data 2018, West Bengal, Madhya Pradesh, Bihar, Odisha and Rajasthan were the worst in terms of effective marriage age. In West Bengal, 47.2% of the women were married between the ages of 18-20.

Penal laws don’t create social change: For example, the marriage age at 18 was set in 1978, but child marriage started to decline only in the 1990s. So, the laws might end up being coercive.

Further, Not all child marriages are prosecuted in India. For instance, the National Crime Record Bureau data says that only 785 cases have been registered under Prohibition of Child Marriage in 2020. The number was 523 in 2019 and 501 in 2018.

Negatively impact marginalized communities: Experts noted that 70% of early marriages(between 18-20) take place in deprived communities such as the Scheduled Caste and Scheduled Tribes. The increasing legal age will make them law-breakers.

For instance, according to NFHS 4 (2015-16), the median age at first marriage for women aged 25-49 is higher among the social categories of Others (19.5 years), OBC (18.5), ST (18.4) and SC (18.1).

Impact on rural women is more: According to SRS data, In rural areas, 37.4% were married between the age of 18 and 20, whereas the ratio was 23.2% in urban areas.

Decrease in Child marriage depends on other factors: The decrease in child marriages has not been because of the existing law but because of an increase in girls’ education and employment opportunities.

A study by the International Centre for Research on Women has found that girls out of school are 3.4 times more likely to be married or have their marriage already fixed than girls who are still in school.

Reduce self-choice marriages: Today, an increasing number of young adult couples opt for self-choice marriages across castes and communities, often without the support of parents. If the Bill is adopted, it will deprive this right till she is 21.

Increase feticide: The Protection of Children from Sexual Offences Act, 2012, allows consensual sex at/after 18 years. This implies that a person may have sex after 18, but cannot marry till s/he is 21. This may give rise to other issues such as feticide.

Read morePopulation control measures in India – Explained, pointwise
What needs to be done towards women empowerment?
Committee recommendations

The Jaya Jaitly committee itself has recommended the following to increase the legal age for women,

1. Increase access to schools and colleges for girls, including their transportation to these institutes from far-flung areas, 2. Incorporate Sex education in schools, 3. Ensure Skill and business training for women, 4. Undertake awareness campaigns on a massive scale to ensure social acceptance of increasing the age of marriage.

Other recommendations

Poverty, unemployment, insecurity due to increasing cases of sexual violence on minors and dowry demands are the main reasons for child marriages.

Focus on poverty alleviation programs: Child marriages have reportedly increased during the pandemic due to poverty and lack of access to schools. So, the government has to ensure the continuation of poverty alleviation programs, especially in rural areas.

Increase Female Labour Participation: Creating non-farm jobs for women from low-income families will ensure financial empowerment. Further, India can learn from Bangladesh’s high women’s participation in the labour force and its social change.

Read moreWe need a multi-pronged approach to end child marriage

Fulfil the recommendation of the Law Commission: The 18th Law Commission of India in 2008 demanded a uniform definition of ‘child’ across all legislations. The Commission examined laws relating to child marriage from different countries and the international covenants that mandate the eradication of child marriage. The Commission recommended that the minimum legal age for marriage for both girls and boys be 18 years.

Replicate the best-performing state: The Niti Aayog recently acknowledged the Odisha government with the SKOCH award for combating child marriage by empowering adolescents and declaring villages as child marriage-free. Such practices need to be replicated by other states.

In many western countries, for example, Australia, The Majority of States in the US, the minimum age of marriage is 18. Further, Young Indians between 18 and 21 can vote, drive, represent the country in sporting events and act in movies deemed ‘Adults Only’. So, the smart reform in India should be to make 18 the minimum age of marriage for both men and women, irrespective of religion.

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