INTRODUCTION
Nearly forty years later, after the 1978 Sharda Law there is a legislative discussion about revising the age of marriage. In 2021, the central government introduced a bill in the Lok Sabha to raise the age of marriage for women from 18 to 21. This would amend the Child Marriage Restraint Act 2006, and the government intends to use it to open up an opportunity for gender neutrality. But it has faced various arguments with respect to the prevalent social issues.
As child marriage is a burning issue in society, several social democrats as well as the government have tried in the past to introduce some laws or social changes to improve women’s lives. But the implementation in practice is not so far.
BACKGROUND
In 1917, some socialists like Annie Besant, Margaret Cousins, Kamala Devi Chattopadhyay, and Muthulakhsmi Reddi came forward to the British government on behalf of the Women’s Indian Association and raised the issue of child marriage. But the British were not interested in implementing social reforms. They then approached Indian politicians such as Gandhi ji and Motilal Nehru. In 1929, on the advice of Gandhi ji, Harbilas Sharda introduced a bill to restrict child marriage. Later, the British government, under pressure, introduced the Child Marriage Restraint Act in 1929, with this the age of marriage for girls and boys was set at 14 and 18, respectively.
After independence in 1949, the marriage age for girls was set to 15 years. In 1978, the Prohibition of Child Marriage Restraint (Amendment) Act raised the age of marriage for boys and girls to 21 and 18, respectively, and also made the offense of child marriage voidable. In the Child Marriage Restraint Act 2006, while maintaining the same criteria for the age of marriage, several important provisions were also added, some of which are:
- Under this Act, the Child may declare his or her marriage void till 20 years of age in the case of girls and till 23 years of age in the case of boys.
- Every child marriage is voidable as provided in Section 3 of the Act.
- Marriage without the knowledge of Guardians shall Automatically be void (Section 12)
REGARDING THE BILL IN QUESTION
In June 2020, the Indian government set up a NITI-Ayog task force headed by Jaya Jaitly to submit a report after getting an on-the-ground picture of infant and maternal mortality rates, total fertility rates, sex ratios, female motherhood, etc. According to some news reports, the task force submitted the report to the PMO in December 2020 and suggested raising the marriage age of girls to 21.
As a result, the central government introduced the bill in Lok Sabha on December 21, 2021, and it was referred to the Standing Committee. The main features of this bill are:
The bill raises the age of marriage for women to 21 years along with it repeals all other existing laws. Also, the time limit for filing a petition for annulment of marriage is extended from 2 to 5 years after attaining the age of majority.
OBJECTIVE
The Indian Government visioning that this amendment will work for Women’s Empowerment & Gender Equality, Improve Maternal & infant mortality rates, raise Nutrition levels, maintain the Sex Ratio at birth and it will also increase female labor force participation.
CONTEMPORARY ISSUES AND SOCIAL COMPLIANCE
According to the latest National Family Health Survey (2019-21) data:
- 7% of Urban and 27.00% of Rural women in the 20-24 years age group got married before 18 years of age.
- The total Children’s fertility rate per woman is 1.6 (urban) and 2.1 (rural).
- The neonatal Mortality Rate (per 1000 live births) is 18 (urban) and 27.5 (rural).
The above data shows the burning reality of Child Marriage.
Since 1929, the age of marriage has been revised several times, and various laws have been enacted but not consistently enforced. Sections 9, 10, and 11 of the Prohibition of Child Marriage Act of 2006 provide for the punishment of child marriage. However, according to NCRB (2020), only 785 cases of child marriage have been recorded across India, which is a very small number compared to the percentage of marriages. Also, most of the reported cases of conviction are related to elopement. Therefore, the penalty can be imposed only if a sufficient number of cases are registered and tried.
Section 3 of the Prohibition of Child Marriage Act 2006 makes a child marriage voidable which also implies a lack of the codification of strict law and it is a major loophole.
In India, we have criminal laws that apply equally to all people, regardless of religion, caste, community, and state, but we do not have equal civil laws for all. This is also another phenomenon because some communities and religions have personal laws that encourage marriages under 18.
AVAILABLE LAWS THAT PROHIBIT CHILD MARRIAGE
In India Prohibition of Child Marriage Act 2006 is a major law that prohibits Child Marriage. According to this, the current age of marriage is 18 years for girls and 21 years for boys and non-compliance to this might cause two years of imprisonment and a fine of up to 1 lakh rupees.
Hindu Marriage Act 1955 and Special Marriage Act 1954 also provide that the marital age should be 18 years for girls and 21 years for boys.
The Indian Penal Code 1861 and POCSO Act 2012 provides, the age of consent for sexual relationships is 18 years for a girl which was revised in 2013 from 16 years.
ARGUMENTS
The central government’s push to raise the age of marriage and amend the law banning child marriage is meeting with mixed arguments:
The All-India Democratic Women’s Association and the National Federation of Indian Women have pointed out that women’s enrollment rates in higher educational institutions have increased and that women also work in various industries, but that these working conditions are mostly unorganized or not conducive to women’s health. Therefore, to achieve gender neutrality in the workplace and educational institutions, the government needs to focus on working conditions, and a marriage age of 18 is not a big problem.
In 2008, the Law Commission recommended that the age of marriage for girls and boys should be uniformly set at 18, as the Indian Majority Act of 1875 allows entering into a contractual relationship at the age of 18 and the Convention on the Elimination of All Forms of Discrimination against Women recommends 18 as the minimum age for marriage.
According to various women’s groups, this will increase patriarchal violence against women who wish to marry between the ages of 18 and 21. All such marriages will be criminalized as child marriages and children of them will be deprived of their rights and entitlements.
SUGGESTIONS
The age of majority according to the Indian Majority Act 1875 and the legal age of signing a contract is 18 years hence couples can live in a relationship after attaining 18 years as well, if the marital age can be 21 years, there should also be some provision to regulate live-in relationships. Because crime while in such a relationship is not less in number but a rising issue. Also, there should be uniform laws regarding marriage and marriage-related crimes, because they will play a vital role in female upbringing throughout the country equally.
CONCLUSION
Nowadays, forced marriage is still a social stigma in some parts of society. The main reason for forced marriage by parents might be due to the lack of education, awareness, social security, as usual practice of inappropriate customs, etc. The human mentality in contemporary society is still pro-customary. This is the 1st or 2nd generation who stepped out and gained some sound education that enabled them to judge the inherited social or customary practices, but still, there are generations who used to believe in the earlier model of practices and encourage their nearest to keep it as usual. The government should emphasize especially in rural India to promote a globalized education system. Teenagers should be taught about India’s golden era i.e, the era before 600 BC when our women had enjoyed immense equality and equal position with men.
However, Raising the age of marriage is indeed a good decision, it will create opportunities for women’s education and more employeability of women. Once it becomes a codified law, the Government should be obliged to implement this up to the last location of the Country. Because we can find that despite there being legal prohibitions, still, child marriage was solemnized in the territory of India and still it is one of the major social concerns.
Author(s) Name: Chiranjit Goswami (Diploma in “Advance Contract Drafting and Negotiations” in Law Sikho)
