Empowering Women: The Imperative to Raise the Legal Marriage Age for Women

ABSTRACT

The Indian government is considering raising the legal marriage age for women from 18 to 21 through the Prohibition of Child Marriage (Amendment) Bill 2021. Supporters claim this move will help reduce maternal and infant mortality rates, decrease teenage pregnancies, and encourage more women to pursue education and become financially independent. Critics argue poverty, not early marriage, causes malnutrition. The article examines judicial biases on gender issues, advocating reforms and sensitization training. It proposes educational reforms focused on skills and jobs as more viable for empowerment than just raising the marriage age. Data indicates that many young women are already choosing to delay getting married without any legal compulsion. Including a uniform 18 marriage age for both men and women, universal basic income, and implementing political reservations will enable women’s self-determination. The text concludes that poverty alleviation and nutrition should be prioritized over raising the marriage age alone.

INTRODUCTION

On the Eve of the 73rd Independence Day, Prime Minister Narendra Modi announced that the government is planning to raise the legal age of marriage for women to 21 years from the existing legal framework which sets the minimum legal age of marriage for girls in India at 18. The government contends that early marriages lead to malnutrition which impacts women’s health and nutrition. To bring this change, the government has introduced The Prohibition of Child Marriage (Amendment) Bill 2021[1] in the parliament. This bill, if implemented, will override all the personal laws of the country. The law will set the legal age of marriage for both women and men at 21 years[2]. The bill has been presently referred to a Parliamentary Standing Committee headed by Jaya Jaitly.[3] The committee has invited suggestions from different stakeholders. The Parliament will pass the bill once all the factors are evaluated and considered. This article will delve into the intricacies of laws related to marriage, and arguments in favor and against increasing the legal age of marriage for women. The text will touch on a different angle of Judicial attitude, the most crucial element in changing society.

THE CHILD MARRIAGE RESTRAINT ACT, 1929

The Child Marriage Restraint Act (CMRA or Sarda Act) of 1929[4] sets the marriage age at 14 for girls and 18 for boys, and it has not been amended since, except for a slight revision to 15 for girls in 1949.[5] In 1978, the Indian Parliament raised the age of marriage to 18 years for girls and 21 years for boys.[6] Subsequently, the Prohibition of Child Marriage Act 2006 was passed which shifted the focus from restraint to complete prohibition of child marriage. There is a prevailing belief behind bringing this change. The belief is that girls mature faster and boys do not become much responsible according to their age. However, there is a hidden patriarchal belief which is the main cause behind this change. The most vocal advocates for raising the age of marriage in the 1970s were professional demographers and policymakers. They contended that men are considered to be the caretakers of their families, they need to work and complete their education whereas women are assumed to work behind the walls and take care of the kitchen only. This act sought to prevent the untimely deaths of these minor girls who were forced into marriage at an early age before their bodies and minds were ready for the responsibilities of motherhood and married life.

STATUS OF CHILD MARRIAGES IN INDIA

Currently, The Prohibition of Child Marriage Act, of 2006[7] serves as the governing law related to child marriages. This legislation has designated child marriage as a cognizable and non-bailable criminal offense, emphasizing the gravity of the matter and the legal consequences associated with it.[8] This law treats underage marriages as valid, but voidable. The child so married has the option to invalidate the marriage or continue to be married. The law says that underage marriages are valid however if the child wants to make the marriage void, he/she can go to the court after 2 years of the legal age i.e. at 20, and declare the marriage as void. If the Prohibition of Child Marriage (Amendment) Bill, 2021 is passed and duly implemented, a boy/girl marrying below the age of 21 can go the court at the age of 23 years and declare the marriage null and void.

ARGUMENTS IN FAVOR OF INCREASING THE LEGAL AGE OF MARRIAGE 

Several arguments are presented in favor of increasing the legal age of marriage for women:

• Discrimination on the grounds of sex: The Indian Constitution prohibits any kind of discrimination based on sex under Article 15.[9] Keeping a different legal age of marriage for men and women is a clear violation of constitutional principles.
• Decrease in Maternal Mortality Rate (MMR) and Infant Mortality Rate (IMR): When a woman marries at the age of 18 or below, the chances of bad health and nutrition levels increase. Early-age marriages often lead to an increase in Maternal Mortality and Infant Mortality Rate. However, in March 2021, the Minister of Women and Child Development replied to a question in Lok Sabha that there is no credible data to suggest that child marriage is the major reason for IMR and MMR.[10] It will also improve the sex ratio at birth as this would promote possibilities of responsible parenthood for both father and mother, making them capable of taking better care of their children.
• Decrease in teenage pregnancies: Every year, an estimated 21 million girls aged 15 to 19 years become pregnant in low-income regions and approximately 12 million of them give birth.[11] The new law, if implemented will help bring down the incidence of teenage pregnancies, which are not only harmful to women’s overall health but also result in more miscarriages & stillbirths. 
• Financial Independence and Women’s Empowerment: According to a study[12], delaying marriage can lead to more adolescent girls completing secondary school and continuing into higher education. By raising the legal age for marriage, women are given an extended period to engage in educational tasks. This opportunity to acquire higher levels of education will equip them with valuable knowledge and skills, thereby enhancing their possibility for financial self-sufficiency and independence.

ARGUMENTS AGAINST INCREASING THE LEGAL AGE OF MARRIAGE 

While the global and national trend has been to raise the legal age for women to get married, there have been certain arguments put forth for decreasing the legal age of marriage for women:

• Reason for malnutrition: Poverty or early marriage? The actual reason for malnutrition is not early marriage rather it is the prevailing poverty in the society. Orthodox mindset people opine that if girls are married at an old age there will be an escalation in dowry demands. Certain families, driven by misguided notions, opt for child marriage as a perceived protective measure for their daughters, operating under the flawed assumption that marrying them off at a young age will safeguard them from the risk of sexual violence and provide a sense of security.[13] This is commonly seen in rural, poor, and marginalized sections of society. A report by the Bill and Melinda Gates Foundation suggests that there is an increasing incidence & prevalence of malnutrition particularly amongst those girls who are married at an early age.[14]
• Concept of Parayadhan: The patriarchal mindset treats women as “Parayadhan” which becomes a misguided factor in increasing child marriages. Daughters are seen as someone else’s property, to be given away in marriage.[15] In the patriarchal societal structure prevalent in India, girls are perceived as burdens, and marrying them off at a young age is viewed as a means of discharging familial obligations.[16]
• Young Women are scripting a change without any law, voluntarily: Data from the Ministry of Statistics and Programme Implementation (MoSPI) reveals that the mean age of marriage in India has increased to 22.1 years.[17] Young women are themselves not getting married early. They are completing their formal education and becoming financially independent. That is the reason, the law is not much required when people are willing to bring change.
• Women’s Infantilization: There is an irony in the consideration of this change. The women who are aged between 18-21 can vote and elect the government of their choice resembling themselves old and capable enough to make political decisions. But as per the government’s decision to bring the change, the same women aged between 18 and 21 are not capable enough to decide their marital choices. This is a classic case of women infantilizing and treating them in a patronizing way.
• Violation of International obligations: India is a signatory to the resolution adopted by the United Nations General Assembly (UNGA) in 1989 which recommended 18 years as the minimum age of marriage.[18] India also ratified the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW)[19] Committee which recommends 18 as the legal age of marriage. By incorporating this change, we will go against our commitments made to the International Community. 

The saying ‘Cart before the horse’ aligns here in the manner that brought this change putting the ‘Statistical cart before the horse of social reality’. The changes are not going to work if its application is not feasible. Instead of increasing the legal age of marriage, the focus of the government should be on eradicating poverty and providing a well-nourished diet to everyone.

JUDICIAL ATTITUDE

The judiciary remains responsive to the evolving needs and aspirations of society. An active and engaged judiciary, rather than a passive or restrained one, is essential for addressing societal concerns and aligning legal interpretations with the changing realities and expectations of the public.[20] Can change in the laws change Judicial attitude? This question can be assessed through instances that have been taken in the past. 

1. Mohinder Singh Case of 1999[21]: Mohinder Singh raped his daughter. When the matter went to court, the judges ruled that the case would fall under the ‘rarest of rare’ category and that the accused must be given the death penalty as punishment. When Mohinder Singh approached Supreme Court, the judges ruled that the matter can not be categorized as the ‘rarest of rare’ category, and Mohinder Singh must be given life imprisonment as punishment for raping his daughter. Further, he was released on parole. While on parole, he brutally killed his daughter and wife. In this matter, the High Court said that the case falls within the ‘rarest of rare’ category. Mohinder Singh again appealed to the Supreme Court in 2013 where Justice P. Sathasivam ruled that the case would not fall under the ‘rarest of rare’ category. He opined that Singh could be a threat to his family, not the society. Justice Sathasivam commuted the death sentence to life imprisonment. This case rules how justice becomes a subjective term when different matters are taken into account.
2. Sundarrajan Case of 2013[22]: In February 2013, the accused Sundarrajan kidnapped and killed a 7-year-old boy. When the matter went to the Supreme Court, it was kept under the ‘rarest of rare’ category. The judge who gave this judgment was Justice P. Sathasivam. He is the same judge who gave the judgment in the Mohinder Singh case. In the Sundarrajan case, Justice Sathasivam ruled that “agony for parents for the loss of their male child, who would have carried further the family lineage, is expected to see them through their old age, is unfathomable.” 

It is very ironic to see how the same authority rules in a very tangential manner. This Judicial attitude needs to be changed so that every individual is given justice in a just and reasonable way.

• The case of Justice Pushpa V. Ganediwala: In January 2021, Justice Ganediwala delivered a judgment and pronounced that “touching a minor girl’s breast without removing the top would not fall within the definition of sexual assault”. She was previously an additional judge of the Bombay High Court but resigned in 2022 after the Supreme Court of India took the unusual step of refusing to confirm her appointment to the High Court as permanent after she delivered this controversial judgment.
• Bhanwari Devi case of 1992[23]: Bhanwari Devi (who belonged to a lower caste) was working to stop child marriages that were happening in Rajasthan. This was not tolerable for some upper caste members. As a revenge, 5 people raped Bhanwari Devi and badly assaulted her husband. When the matter went to the Jaipur trial Court, the court gave a judgment that no one could believe. The court first released all 5 men and ruled how Bhanwari Devi can be raped when his husband was there at the place of the incident. The court even went to the extent of saying that men from different castes could not be involved in rape and two of the accused, over 60 years old, were too old to be involved in the act. However, the Supreme Court later gave justice to her which came to be later known as Vishaka Guidelines.

These two instances highlight the judicial inefficiency and perceived bias in certain rulings. It is important to recognize that meaningful societal change cannot be achieved without the Judiciary’s active role and involvement. This mandates that Gender Sensitization for the Judiciary and other authorities is the need of the hour.

THE MOST VIABLE SOLUTION: EDUCATIONAL REFORMS 

There have been various research and studies that validate that Education is the key to enhancing women’s empowerment and their financial Independence. 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.[24] According to the State of the World Report 2020 by the United Nations Population Fund (UNFPA), in India, 51% of Young Women with no education & 47% of those with only primary education had married by the age of 18 compared to 29% of young women with secondary education, & 4% with post-secondary education.[25] Hence, the education of women will prove to be a powerful catalyst that would equip women with the knowledge, skills, and confidence necessary to participate effectively in the economy and society.

CONCLUSION 

The proposed law is neither feasible nor grounded in evidence. Despite having a law, we have still not been able to tackle the problem of child marriages below the age of 18. Some suggestions that the government can take into consideration are:

• The government’s work is praiseworthy in giving reservation to women in politics since women will now be given 33% of reservation in the parliament and state legislatures.[26] However, proper implementation of this law will prove to be more effective in ensuring women’s participation. This will empower women to decide on a reform on their own.
• Reports suggest that women spend better than men if given cash money. A Universal Basic Income must be set for enhancing the financial independence of women. 
• The government should accept the suggestion made by the Law Commission in 2008[27], to keep the eligible age of marriage at 18 for both women and men.
• Skilling should be encouraged. Education should be given which will enable women to enter the job market making them empowered, independent, and confident.

Reference(s):

[1] The Prohibition of Child Marriage (Amendment) Bill, 2021, No. 15 of 2021 (India).

[2] Id.

[3] IAS, V. (2021) Jaya Jaitly Committee, The Union Cabinet’s decision to raise the legal age of marriage for women in India is based on the recommendation of a panel led by Jaya Jaitly. Available at: https://vajiramias.com/current-affairs/jaya-jaitly-committee/61bc1dc81d5def313a228d8b/#:~:text=17%2C%202021-,The%20Union%20Cabinet’s%20decision%20to%20raise%20the%20legal%20age%20of,panel%20led%20by%20Jaya%20Jaitly. (Accessed: 05 June 2024).

[4] The Child Marriage Restraint Act, 1929, No. 19, Acts of Parliament, 1929 (India).

[5] TAMBE, A. (2019). Population Control and Marriage Age in India, 1960–1978. In Defining Girlhood in India: A Transnational History of Sexual Maturity Laws (pp. 101–120). University of Illinois Press. https://doi.org/10.5406/j.ctvscxsdm.9

[6] Chachra, S. and Panda, G. (2021) Raising the legal age of marriage for girls: Change in legislation without education won’t bring Gender Equality, Down To Earth. Available at: https://www.downtoearth.org.in/blog/governance/raising-legal-age-of-marriage-for-girls-change-in-legislation-without-education-won-t-bring-gender-equality-80857 (Accessed: 05 June 2024).

[7] The Prohibition of Child Marriage Act, 2006, No. 6, Acts of Parliament, 2007 (India).

[8] Deswal, V. (2019) Legal status of child marriages in India, Times of India Blog. Available at: https://timesofindia.indiatimes.com/blogs/legally-speaking/legal-status-of-child-marriages-in-india/#:~:text=The%20present%20law%2D%20Prohibition%20of,cognizable%20and%20non%2Dbailable%20offence. (Accessed: 05 June 2024).

[9] INDIA CONST. art. 15.

[10] Lok Sabha Unstarred Question No. 2870, Ministry of Women and Child Development, March 12, 2021.

[11] Darroch J, Woog V, Bankole A, Ashford L.S, 2016, Adding it up: Costs and benefits of meeting the contraceptive needs of adolescents, New York: Guttmacher Institute

[12] Jain, S., Chuphal, B. and Shakarad, M.N. (2023) The effect of financial independence of Indian women on their marriage decisions, Social Studies. Available at: https://www.sociostudies.org/journal/articles/3436072/ (Accessed: 05 June 2024).

[13] Raj, A. (2018) Child marriage, sexual violence, and the #MeToo movement, Berkley Center for Religion, Peace and World Affairs. Available at: https://berkleycenter.georgetown.edu/responses/child-marriage-sexual-violence-and-the-metoo-movement (Accessed: 03 June 2024).

[14] Gates, B. and Gates, M.F. (2023) 2023 goalkeepers report, Gates Foundation. Available at: https://www.gatesfoundation.org/goalkeepers/downloads/2023-report/2023-goalkeepers-report_en.pdf (Accessed: 04 June 2024).

[15] Singh, R. (2023) Unveiling the harsh truth of child marriage in India, SabrangIndia. Available at: https://sabrangindia.in/unveiling-the-harsh-truth-of-child-marriage-in-india/ (Accessed: 05 June 2024).

[16] Singh, R. (2023a) The reality of Child marriage in India, CJP. Available at: https://cjp.org.in/the-reality-of-child-marriage-in-india/ (Accessed: 05 June 2024).

[17] India, G. (2017) Chapter 1 Population related statistics, MoSPI. Available at: https://www.mospi.gov.in/sites/default/files/reports_and_publication/statistical_publication/social_statistics/WM17Chapter1.pdf (Accessed: 05 June 2024).

[18] G.A. Res. 44/25, (Nov. 20, 1989).

[19] Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13.

[20] Devi, M. (2024) The Role of Judicial Activism in shaping Constitutional Law of India, EPRA International Journal of Multidisciplinary Research (IJMR). Available at: https://eprajournals.com/IJMR/ (Accessed: 05 June 2024).

[21] State of Punjab v. Mohinder Singh ILR (2008) 2 P&H 441, (2008) 3 RCR (Cri) 226

[22] G. Sundarrajan v. Union of India, (2014) 6 SCC 776

[23] Bhanwari v. State of Rajasthan, (2015) 16 SCC 582

[24] Achyut, Pranita; Khurana, Nalini V.; Reddy, Hanimi; Gautam, Abhishek & Verma, Ravi K. (2020). Raising Her

Voice: Agency and Aspirations of Adolescent Girls on Marriage — Evidence from Jharkhand, India. New

Delhi: International Center for Research on Women.

[25] Population Fund, U.N. (2020) State of the World Population. Rep. New York, New York State: UNFPA, pp. 1–160.

[26] “The Constitution (One Hundred and Sixth Amendment) Act, 2023” (PDF). The Gazette of India. 28 September 2023. Retrieved 10 October 2023.

[27] LAW COMMISSION OF INDIA, REPORT NO. 205: PROPOSAL TO AMEND THE PROHIBITION OF CHILD MARRIAGE ACT, 2006 AND OTHER ALLIED LAWS 10 (2008).