Implications of raising the Marriageable Age of Women

Author: Hunar Student, Rajiv Gandhi National University of Law, Punjab


On December 20, 2021, The Prohibition of Child Marriage (Amendment) Bill, 2021, was introduced in the Lok Sabha. The bill seeks to amend the minimum age of marriage for women to 21 years.[1] However, due to certain resistance by the opposition, it has now been sent to a Standing Committee for further perusal. One of the major objectives for introducing the bill is encouraging the equality of all genders guaranteed by the Constitution of India under Article 14.[2] As per the Bill, a child is defined as “a male or female who has not completed 21 years of age.”[3] By formulating a uniform marriageable age, the Indian government has managed to take a progressive step in order to fulfill Goal 5 of the Sustainable Development Goals which directs states to take continuous and progressive steps towards achieving gender equality.[4] Currently, several laws like the Hindu Marriage Act, 1955, the Parsi Marriage and Divorce Act, 1936, Indian Christian Marriage Act, 1872, the Special Marriage Act, 1954, the Muslim Personal Law (Shariat) Application Act, 1937, and the Foreign Marriage Act, 1969 lay down various provisions that deal with the minimum age of marriage yet none of them seek to define a uniform marriageable age for both men and women.[5] In the year 1993, India ratified the Convention on the Elimination of All Forms of Discrimination Against Women which actively promotes women’s and girls’ equal rights.[6] Article 16 of the Convention declares child marriages as illegal and directs countries to take steps to identify and enforce a minimum marriageable age for women.[7] By amending the Prohibition of Child Marriage Act, 2006, the Bill aims to bring “women at par with men in terms of marriageable age, overriding all existing laws, including any custom, usage or practice in terms of marriage.”[8]

A legal age of marriage is prescribed mainly to counter child marriages. It has been well established that child marriages lead to malnutrition, early pregnancies, and various forms of violence which can only be countered by strict enforcement of the law. While the voting age for males and females is uniform, there exists a stark and unsettling non-uniformity when it comes to the legal marriageable age of men and women which is one of the major causes of female discrimination. In today’s era of growth and development, men and women stand on equal footing and we bear witness to increased participation of women in all spheres of life. Thus, it becomes only imperative that the government actively takes progressive steps to achieve gender equality and guarantees basic rights to women in order to end female discrimination.


Is it favorable to Increase the Legal Age of Marriage?

It has been argued by several proponents of increasing the marital age for women that doing so will lead to the improvement of the number of females completing high school education and further pursuing higher education. Currently, due to various reasons including economic factors and lack of a strong social framework, females are forced to dropout of their studies in order to get married. Furthermore, there exists a high probability of early pregnancies which impact both physical and mental health of the female and may also lead to death due to severe complications. Therefore, increasing the marriageable age may help reduce maternal mortality rate. By increasing the marriageable age, the government seeks to counter child marriages which is a progressive step towards guaranteeing basic rights to women. Section 5(iii) of the Hindu Marriage act, 1955[9] sets the marriageable age for men and women at 21 and 18 respectively, which not only creates gender disparity but is also not backed by any reasonable logic. One of the objectives of bringing in the amendment also state that existing laws are not enough to secure the mandate of the Constitution that guarantees equality in marriageable age of men and women and therefore women are found to be placed at a disadvantageous position with regards to education, skill sets and fulfillment of psychological needs.[10] Therefore, with this bill the government seeks to address issues impacting women in the society in a holistic manner through women empowerment, increasing participation of women in the workforce, gender equality and helping them become self-reliant.[11]


Opponents of Increasing the Legal Age of Marriage

Many opponents of increasing the legal age of marriage contend that in order to empower women, the custom of marriage or the legal age to marry should not be the primary focus as it not only narrows the scope of change but also shifts the focus on the act of marriage itself from the prevailing factors that may be the reason of a child marriage.[12] Furthermore, as good as the step looks on paper, it may not make much difference for financially dependent women without the availability of appropriate infrastructure like healthcare facilities, educational facilities, access to sanitary conditions and job opportunities to name a few. There have been a handful of stringent laws already in place to tackle the problem of child marriages. Yet, child marriages are still undeterred in India. As per the National Family Health Survey (2019-2021), one-fourth of women aged between 20-24 years were married before the age of 18.[13] The pandemic has managed to exacerbate the problem despite the prevalence of laws. Therefore, the problem is majorly of implementation of the existing laws. Another argument states that most girls belonging to regressive, conservative and orthodox families wish to marry the person of their choice at 18 years of age in order to escape their families’ clutches. Thus, waiting for an extra three years may expose them to increased mental agitation by reducing female autonomy and may be misused by the families in order to control and threaten them.[14]


The Legal Aspect

In India, child marriages are illegal but not void. This means that the marriage can be declared void by the court on request by the minor party in order to protect their basic rights.

Through the current amendment, a change will be seen in the legal age to marry prescribed under the Prohibition of Child Marriage Act, 2006. Furthermore, personal laws like The Hindu Marriage Act, 1955, Indian Christian Marriage Act, 1872 including the Special Marriage Act, 1954 will also undergo changes. However, changes in the Muslim personal law may lead to various legal issues as Islam allows marriage between minors who have attained puberty which is usually at 15. Under PCMA, there is no provision that explicitly claims that the act can override other laws in place on the same issue. For instance, in February 2021, the Punjab and Haryana High Court granted protection to a 17-year-old Muslim girl married to a 36-year-old Muslim man while noting that they were of the legal marriageable age as per Muslim law.[15]


Conclusion

The progressive step taken by the government is surely applaudable but not enough. There has been an increase in the average age of marriage in the last few years, however, child marriages are not only prevalent but also remain resolute mainly due to poor implementation of existing laws and lack of sensitization against child marriages. The custom of marriage in India is one of the sacred pillars that upholds the norms of the society. However, one tends to forget the essential rights of females not only in terms of the legal age to marry but also the basic rights they have in a marriage. Furthermore, the solution to reduce gender inequality lies in the enhancement of education of girls, spreading awareness about the benefits of educating girls, especially in areas with high rate of female dropouts. People must be sensitized about the ills of child marriages and those who encourage it must be dealt with properly and according to the existing laws. There is a crucial need to invest in the empowerment of disadvantaged women in order to reduce the structural drawbacks they may be prone too.

[1] Abhishek Jha, Can a law to raise the marriage age of women work?, HINDUSTAN TIMES (Jan. 22, 2022, 2:03 PM), https://www.hindustantimes.com/india-news/can-a-law-to-raise-marriage-age-for-women-work-101640281633937.html

[2] Id.

[3] The Prohibition of Child Marriage (Amendment) Act, 2021, § 2

[4] UNITED NATIONS, https://unric.org/en/sdg-5/#:~:text=Goal%205%3A%20Achieve%20gender%20equality,peaceful%2C%20prosperous%20and%20sustainable%20world., (last visited Jan. 22, 2022).

[5] DRISHTI IAS, https://www.drishtiias.com/daily-updates/daily-news-editorials/raising-legal-age-for-marriage, (last visited Jan. 22, 2022)

[6] UNWOMEN, https://www.unwomen.org/en/digital-library/publications/2016/12/cedaw-for-youth#:~:text=The%20Convention%20on%20the%20Elimination,women’s%20and%20girls’%20equal%20rights. (last visited Jan. 22, 2022)

[7] Pooja Khanna, Zachary Kimmel, Ravi Karkara, Convention on the Elimination of All Forms of Discrimination Against Women for Youth, UNWOMEN, (Jan. 22, 2022, 7:20 PM), https://www.unwomen.org/sites/default/files/Headquarters/Attachments/Sections/Library/Publications/2016/CEDAW-for-Youth.pdf

[8] T.K Rajalakshmi, The Prohibition of Child Marriage (Amendment) Bill has a flawed notion of gender justice, FRONTLINE, (Jan. 22, 2022, 7:48 PM).

[9] Hindu Marriage Act, 1955, § 5(iii), No. 25, Acts of the Parliament, 1955 (India)

[10] T.K Rajalakshmi, The Prohibition of Child Marriage (Amendment) Bill has a flawed notion of gender justice, FRONTLINE, (Jan. 22, 2022, 8:02 PM) https://frontline.thehindu.com/social-issues/gender/the-prohibition-of-child-marriage-amendment-bill-has-a-flawed-notion-of-gender-justice/article38054966.ece

[11] Id.

[12] Flavia Agnes, Increasing marriage age for girls may only strengthen patriarchy, TIMES OF INDIA, (Jan. 23, 2022, 11:23 AM) https://timesofindia.indiatimes.com/blogs/toi-edit-page/increasing-marriage-age-for-girls-may-only-strengthen-patriarchy/

[13] EDEXLIVE, https://www.edexlive.com/news/2021/nov/25/nfhs-5-every-fourth-woman-aged-20-24-fell-prey-to-child-marriage-even-as-percentage-drops-25844.html, (last visited Jan. 23, 2022).

[14] THE LEAFLET, https://www.theleaflet.in/minimum-legal-age-of-marriage-for-women-being-raised-to-21-years-pros-and-cons/, (last visited Jan. 23, 2022).

[15] Sparsh Upadhyay, 17-Yr-Old Muslim Girl Marries 36-Yr-Old Muslim Man- “Both Are Of Marriageable Age Under Muslim Personal Law”: P&H High Court Grants Them Protection, LIVE LAW, (Jan. 23, 2002, 5:23 PM), https://www.livelaw.in/news-updates/muslim-personal-law-marriageable-age-puberty-punjab-and-haryana-high-court-169670

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