Revisiting the "age of marriage"

INTRODUCTION

Prime Minister Narendra Modi in his address to the nation on the occasion of 74th Independence Day informed the country about the formation of a committee to consider the revision of age of marriage for women. The Finance Minister Nirmala Sitharaman in her budget speech had also announced the setting up of a committee to look into the “age of a girl entering into motherhood”. The pandemic has forced the committee to miss its July 31 deadline. However, the assurance given by the PM suggests that the work of the committee is in process and it can make recommendations in coming months. The primary law which governs this field is the Prohibition of Child Marriage Act, 2006 (PCMA) which prescribes the minimum age of marriage for women and men as 18 years and 21 years respectively.

This article makes a case for revising the minimum age of marriage and increasing it to 21 for women by relying on secondary statistical data, along with international conventions and judicial pronouncements.

LEGAL ASPECTS RELATING TO MINIMUM AGE OF MARRIAGE

The legal framework governing the minimum age of marriage inter alia touches upon the age of consent to sexual intercourse and age of majority. The age of majority is gender neutral and is statutorily fixed at 18 years.

The minimum age of marriage is given under various personal laws.[1] All these laws prescribe the minimum age of marriage for men as 21 years and 18 years for women.

Further, Islamic law being uncodified stands at a different footing as compared to other personal and secular laws discussed above. Islamic texts do not specify a minimum age of marriage but state that both males and females should have reached puberty among other conditions. The Supreme Court in Shafin Jahan v. Ashokan KM[2] recognized the requirement of attaining puberty as a condition precedent for a valid Muslim marriage. Recently a 16-year-old girl approached the Supreme Court to declare her marriage as valid citing the Hon’ble Court’s decision in Shafin Jahan.[3] The matter is pending before the Supreme Court.

In 2017, a conflict that was created by the contradicting views of Punjab-Haryana High Court[4] and Madras High Court[5] and Gujarat High Court[6] was resolved by the Apex Court in the case of Independent Thought v. Union of India.[7] The Supreme Court held that the PCMA being a secular and special law will prevail over all personal laws. It also read down Exception 2 to Section 375 of the Indian Penal Code, 1860 opining that a man could now be prosecuted for marital rape of a minor wife as she is incapable of giving consent to sexual intercourse. This was because the age of consent to sexual intercourse was already increased from 16 to 18 years of age in the year 2013[8] and which now coincides with the minimum age of marriage for women. However, the existing legal framework governing the minimum age of marriage and the interpretation given by the Supreme Court puts a minor wife’s legal position under perplexity as even though her marriage is valid (voidable)[9], yet she has no right to give consent to sexual intercourse.

A petition challenging this discriminatory ‘minimum age’ limit of marriage for men and women in India was filed in the Delhi High Court.[10] This petition is still pending before the Court.

GROUNDS TO REVISE THE MINIMAGE AGE OF MARRIAGE

It is necessary to increase the age of marriage for women to 21 years in order to ensure that the rights of a married woman are well recognized and protected. There are many reasons why this change is essential.

The foremost reason is the health of women. The Supreme Court has time and again recognized the Right to Health as a fundamental right under Article 21 of the Constitution.[11] An early marriage directly impacts the health of the adolescent. To add to that the societal pressure of bearing children severely affects the well-being of both the young mother and her progeny as she is expected to beget children immediately after marriage in our society. Therefore, increasing the age of marriage for women will have a direct positive impact on the health of the mother.

According to National Family Health Survey-IV (2015-16), the prevalence of anaemia among adolescent girls aged 15-19 years is 54%.[12]There is a distinct co-relation between early marriage and increased levels of anaemia and nutritional deficiencies among girls and women.[13] Marriage, pregnancy and delivery during adolescence not only drains their already poor nutritional reserves, but also leads to child stunting and mortality to multiple diseases at a later stage.[14] According to the Factsheet on Adolescent Pregnancy published by the World Health Organization, “adolescent mothers aged 10–19 years face higher risks of eclampsia, puerperal endometritis and systemic infections than women aged 20–24 years”.[15] Further, newborns born to such mothers also “face higher risks of low birth-weight, preterm delivery, and severe neonatal conditions”.[16]

India has significantly decreased its Maternal Mortality Ratio from 167 per 100,000 in 2011-13[17] to 113 per 100,000 in 2016-17[18] which can further be decreased by increasing the age of marriage. This will not only give girls more time to get primary and higher education, but will also ensure higher enrolment ratio in schools and the decrease in student drop outs. To add to that, educated and empowered women will naturally have more sexual and reproductive rights, awareness, access to contraceptives, family planning resources and overall better decision-making authority with respect to reproduction.

Secondly, there should be uniformity in the legal age of marriage for both men and women so as to promote gender neutrality. The stereotypical view of the society, which believes in the fact that only men should pursue higher studies and take up jobs afterwards had formed the legislative basis of setting a higher minimum age of marriage for men as compared to that for women. However, the authors feel that there is no reason as to why women should be pushed into an early marriage and not given the same opportunity as men.

The National Human Rights Commission in 2018 pointed to the global trend that more than 125 countries in the world have a uniform age of marriage and recommended that India should bring uniformity in the minimum age limits.[19] The Law Commission of India (LCI) in its “Consultation Paper on Reform of Family Law” published in 2018 has stated that the different age of marriage “simply contributes to the stereotype that wives must be younger than their husbands”.[20] The LCI in its 205th Report on “Proposal to Amend the Prohibition of Child Marriage Act, 2006 and Other Allied Laws” has observed that there exists no scientific basis for a distinction in age of marriage for both boys and girls.[21]

It is also important to note that the Supreme Court in Joseph Shine v. Union of India[22] has observed that a law that treats women differently based on gender stereotypes causes a direct affront to women’s dignity, violating Articles 14 and 21 of the Indian Constitution. Necessarily, such a law would also result in the non-fulfilment of India’s obligations under Article 5(a) and 16(1)(a) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).[23]

Moreover, all women have a fundamental right to choose any job or occupation as per their choice.[24] They also have the right to higher education after schooling which usually completes at 18.[25] Increasing the legal age of marriage to 21 will extend them a significant opportunity to pursue higher education and become Atmanirbhar by improving their chances of getting a dignified and well paid job. Educating the women will have a positive bearing on their economic empowerment and this in turn will lead to national empowerment. A McKinsey Global Institute report estimates that increasing women’s labour force participation by just ten percentage points could add $770 billion to India’s GDP by 2025.[26] It will also affect the overall demography of India and will help in population stabilisation as an empowered woman will have the choice on the number of births she wants to give during her lifetime.

CONCLUSION

Political power ineludibly must result in social and economic reform. The need for the revision of age has been time and again substantiated by the various above-mentioned reports and a judicial intent can also be inferred. This has put an onus on the legislature to honor the changes in society and bring reforms for the well-being of women to ensure that the social evils don’t become the symbols of suffering and injustice. Statutorily making child marriages void and lobbying for a sound education system are also suggested. Prime Minister Modi has repeatedly emphasized on the importance and the role to be played by the youth in the development of the country and the proposed change will definitely do a world of good to the young women of this country.

[1] S. 60, The Indian Christian Marriage Act, 1872; S. 3(1), The Parsi Marriage and Divorce Act, 1986; S. 4(c), The Special Marriage Act, 1954; S. 5(iii), The Hindu Marriage Act, 1955. [2] AIR 2018 SC 357. [3]SC summons UP home secretary in Muslim girl case, Hindustan Times, available at https://www.hindustantimes.com/india-news/sc-summons-up-home-secretary-in-muslim-girl-case/story-q4lQHuuIFmtI7cjURZmYCL.html, last seen on 24/09/20. [4] Moh Samim v. State of Haryana, 2019 (1) RCR (Criminal) 685. [5] M. Mohamed Abbas v. The Chief Secretary, Government of Tamil Nadu, 2015 (3) RCR (Civil) 1017. [6] Yunusbhai Usmanbhai Shaikh v. State of Gujarat, 2016 (1) RCR (Criminal) 690. [7] (2017) 10 SCC 800. [8] The Criminal law (Amendment) Act, 2013. [9]Section 3, The Prohibition of Child Marriage Act, 2006. [10]Ashwini Kumar Upadhyay v. Union of India, W.P.(C) 8905 of 2019 (Delhi High Court 14/08/19). [11] State of Punjab v. Mohinder Singh Chawla, (1997) 2 SCC 83; Paschim Banga Khet Mazdoor Samity v. State of West Bengal, (1996) 4 SCC 37. [12] Anaemia in Women, Press Information Bureau, available at https://pib.gov.in/PressReleasePage.aspx?PRID=1575151, last seen on 23/09/20. [13] Ministry of Health and Family Welfare, Government of India, National Family Health Survey 2015-16, India Fact Sheet, available at http://rchiips.org/nfhs/pdf/NFHS4/India.pdf, last seen on 24/09/20. [14] Ministry of Health and Family Welfare, Government of India, National Family Health Survey 2015-16, India, available at http://rchiips.org/nfhs/NFHS-4Reports/India.pdf, last seen on 23/09/20. [15] Adolescent Pregnancy, World Health Organization, available at https://www.who.int/news-room/fact-sheets/detail/adolescent-pregnancy, last seen on 24/09/20. [16] Ibid. [17] MMR (per 100000 Live Births), NITI Aayog, available at https://niti.gov.in/content/maternal-mortality-ratio-mmr-100000-live-births, last seen on 23/09/20. [18] Special Bulletin on Maternal Mortality in India, 2016-18, Census India, available at https://censusindia.gov.in/vital_statistics/SRS_Bulletins/MMR%20Bulletin%202016-18.pdf, last seen on 24/09/20. [19] Minutes/Recommendations, National Conference on Child Marriage, National Human Rights Commission, available at https://nhrc.nic.in/sites/default/files/Revised_recommendation_CM_as_on%2026-10-2018_1.pdf, last seen on 23/09/2020. [20] Law Commission of India, Consultation Paper on “Reform of Family Law”, 2018, available at http://www.lawcommissionofindia.nic.in/reports/CPonReformFamilyLaw.pdf last seen on 24/09/2020. [21] 215th Law Commission of India Report, “Proposal to Amend the Prohibition of Child Marriage Act, 2006 and Other Allied Laws”, available at http://lawcommissionofindia.nic.in/reports/report205.pdf last seen on 23/092020. [22] (2019) 3 SCC 39. [23] Convention on the Elimination of All Forms of Discrimination against Women, General Assembly Res. 34/180 (18/12/1979), available at https://www.ohchr.org/documents/professionalinterest/cedaw.pdf last seen on 24/092020. (India has both signed and ratified the convention and is thus under a duty to fulfill all its obligations under the convention.) [24]Art. 19(1)(g), the Constitution of India. [25]Art. 26, Universal Declaration of Human Rights (India has both signed and ratified UDHR). [26] The Power of parity: Advancing women’s equality in India, McKinsey & Company, available at https://www.mckinsey.com/featured-insights/employment-and-growth/the-power-of-parity-advancing-womens-equality-in-india, last seen on 24/09/20.


Submitted by,

Saket Kumar Rao & Gauri Hemant Kinikar,

National Law Institute University, Bhopal.