Minimum Legal Age of Marriage for Women – Laws, Pros and Cons

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Prime Minister Narendra Modi In his seventh Independence Day speech at Red Fort, stressed upon several aspects about the development of women in India including his government’s resolve to revise the minimum age at which women can legally get married in India. He has announced that the central government has set up a committee to reconsider the minimum age of marriage for women, which are currently 18. Though there is ambiguity in available data, the recent trends show that in nearly one-third of marriages in India women are aged less than 21.

 

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What is this Committee all about?

  • The Union Ministry for Women and Child Development set up a committee in June 2020, to examine the matters pertaining to the age of motherhood, imperatives of lowering Maternal Mortality Ratio and the improvement of nutritional levels among women. The Committee is headed by Jaya Jaitely.
  • The Committee was proposed in the Union Budget 2020-21.
  • It will examine the correlation of age of marriage and motherhood with health, medical well-being, and nutritional status of the mother and neonate, infant or child, during pregnancy, birth and thereafter.
  • It will also look at key parameters like Infant Mortality Rate (IMR), Maternal Mortality Rate (MMR), Total Fertility Rate (TFR), Sex Ratio at Birth (SRB) and Child Sex Ratio (CSR), and will examine the possibility of increasing the age of marriage for women from the present 18 years to 21 years.

In this context let’s try to increase our wisdom on all dimensions related to Minimum Legal Age of Marriage for Women in India through a detailed analysis.

Why there is a minimum age for marriage?

  • The law prescribes a minimum age of marriage to essentially outlaw child marriages and prevents the abuse of minors.
  • Personal laws of various religions that deal with marriage have their own standards, often reflecting custom.
  • Section 5(iii) of The Hindu Marriage Act, 1955, sets 18 years as the minimum age for the bride and 21 years as the minimum age for the groom For Hindus. However, child marriages are not illegal although they can be declared void at the request of the minor in the marriage.
  • The marriage of a minor who has attained puberty is considered valid In Islam.
  • The Special Marriage Act, 1954, and the Prohibition of Child Marriage Act, 2006 also recommend 18 and 21 years as the minimum age of consent for marriage for women and men respectively.
  • In Addition, sexual intercourse with a minor is rape, and the ‘consent’ of a minor is regarded as invalid since she is deemed incapable of giving consent at that age.

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How did the law evolve?

  • The Indian Penal Code enacted in 1860 criminalized sexual intercourse with a girl below the age of 10. Through The Age of Consent Bill, 1927, the provision of rape was amended in 1927, which declared that marriage with a girl under 12 would be invalid.
  • The conservative leaders of the Indian National Movement, who saw the British intervention as an attack on Hindu customs made the law to face strict opposition.
  • Only in the 1880s, a legal framework for the age of consent for marriage began in India
  • The Child Marriage Restraint Act set 16 and 18 years as the minimum age of marriage for girls and boys respectively in 1929. The law, commonly known as the Sarda Act after a judge and a member of Arya Samaj, Harbilas Sarda.
  • To prescribe 18 and 21 years as the age of marriage for a woman and a man respectively, it was amended in 1978.

Why there is a different legal age of marriage for men and women?

  • There is no rationale in the law for having different legal standards of age for men and women to marry.
  • The laws are basically a codification of custom and religious practices prevailed in India.
  • According to the Law Commission consultation paper, having different legal standards “contributes to the stereotype that wives must be younger than their husbands”.
  • Women’s rights activists are of the view that the law also perpetuates the stereotype that women are more mature than men of the same age and, therefore, can be allowed to marry sooner.
  • The international treaty Committee on the Elimination of Discrimination against Women (CEDAW), calls for the annihilation of laws that assume women have a different physical or intellectual rate of growth than men.

Why is the law being relooked at?

  • There are many arguments in favour of increasing the minimum age of marriage of women like
    • Bringing in gender-neutrality
    • To reduce the risks of early pregnancy among women.
    • To avoid the early pregnancy which is associated with increased child mortality rates and also affects the health of the mother.
    • Child marriages are very prevalent in the country despite having various laws mandating minimum age and criminalising sexual intercourse with a minor.
  • Last year, the Delhi High Court also sought the central government’s response in a plea that sought a uniform age for marriage for men and women.

What are the grounds on which the law was challenged?

  • The PIL filed by the petitioner of the case had challenged the law on the grounds of discrimination. He argued that Articles 14 and 21 of the Constitution, which guarantee the right to equality and the right to live with dignity, were violated by having different legal ages for men and women to marry.
  • Two significant Supreme Court rulings can act as precedents to support the petitioner’s claim.
  1. In 2014, in the ‘National Legal Services Authority of India v Union of India’ case, the Supreme Court, while recognising transgender as the third gender, said that justice is conveyed with the presumption that since mankind has equal value, therefore they should be treated equally using same and equal laws.
  2. In 2019, in ‘Joseph Shine v Union of India’, the Supreme Court decriminalized adultery, and said that “a law that treats women differently based on gender stereotypes is an affront to women’s dignity”.

How common are child marriages in India?

  • According to data by India’s Sample Registration System SRS, an annual nationwide survey that covered 8 million Indians that year, In India, Women get married before they complete 18 only in 1-3 per cent of marriages. But while men mostly get married after they cross the age of 21, one-third of women were below 21 at the time of marriage.

  • However, another government survey paints a completely different picture. According to the latest survey data available in India (National Family Health Survey – 4, 2015-16) shows that Child Marriage before women complete 18 years of age, is still rampant in India.
  • About 27 per cent of women between 20 and 24 had got married before they completed 18 years of age.
  • At the global level, this proportion is higher than that in Iran and Pakistan, according to UNICEF data.
  • In developed countries, the legal age for marriage for men as well as women is 18, as is the threshold set by the United Nations.
  • Prime Minister Modi’s recent remarks are very important in the light of the fact that one-third of child marriages in the world take place in India.
  • The National Family Health Survey (NFHS-4) found in 2015-16 that 26.8 per cent women in the age bracket 20-24 were married before they completed 18 years of age.

  • Child marriage was, nonetheless, less prevalent in 2015-16, than the 50 per cent prevalence in 2005-06. The 2018-19 version of the survey, or NFHS-5, is yet to be released. NFHS-4 covered half a million households in 2015-16.

  • In the early 20th century, child marriage was rampant, and women used to get married at quite an early age in India. The Sarda Act of 1930 put a floor on legal age for marriage at 14 for women, and at 18 for men.
  • “Social determinants of child marriage are indicative of a patriarchal system that prevents women from obtaining an education, earning a livelihood, and becoming productive citizens,” a 2018 paper by Rajeev Seth and others noted.
  • The Child Marriage Restraint Act changed the legal age of consent to marriage at 18 for women and 21 for men in 1978. The Act labelled all marriages happening prior to attaining these ages as “child marriage,” punishable under law.
  • A decade later in 1990, the effective mean age at marriage for Indian women had risen to 19.3. It has now further risen to 22.3 in 2018, according to the SRS data.
  • But the range of average age of marriage goes from 21 to 26 across states. In that regard, women in Jammu & Kashmir marry the latest among all states.
  • In general, women in villages marry later than the national average in northern hilly states and southern states of Kerala and Tamil Nadu.
  • Largely rural states such as Madhya Pradesh show early average age at marriage for women.

  • In cities, the average age at which women get married is higher than that in rural India. Even in urban areas, it is women in J&K and Himachal Pradesh who thwart early marriage.

  • A 2015 district-level survey on child marriage found out the drivers of child marriage. Educational facilities beyond primary schooling near the village, the concentration of marginalised communities, infrastructure such as electricity and primary health, and accessibility are the chief reasons people still cling to age-old customs, the survey by International Center for Research on Women and UNICEF found.

What is the link between the Age of Marriage and Nutrition?

  • A study conducted by the International Food Policy Research Institute (IFPRI), which was published in 2019, showed that children born to adolescent mothers (10-19 years) were 5 percentage points more likely to be stunted (shorter for their age) than those born to young adults (20-24 years), and 11 percentage points more stunted than children born to adult mothers (25 years or older).
  • Children born to adolescent mothers also had 10 percentage points higher prevalence of low weight as adult mothers.
  • It also highlighted other factors, such as lower education among teenage mothers and their poor economic status, which had the strongest links with a child’s height and weight measurements.
  • It recommended that increasing age at first marriage, age at first birth, and girl’s education are a promising approach to improve maternal and child nutrition.

What are the Arguments against the Minimum Age of Marriage of Women?

  • The National Coalition Advocating for Adolescent Concerns asserts that increasing the legal age of marriage for girls will only “artificially expand the numbers of married persons deemed underage and criminalise them and render underage married girls without legal protection”.
  • Instead, transformative, well-resourced measures that increase girls’ access to education and health create enabling opportunities and place girl’s empowerment at the centre will not just delay marriage but lead to long term, positive health and education outcomes.
  • It recommended bringing education for three-to-five year-olds and 15-to-18 years under the Right to Education, instead of confining the law to children between 6 years to 14 years.

What is the way forward?

  • There is a need to focus on a mother’s health and readiness to carry a child as early pregnancy is associated with increased child mortality rates and affects the health of the mother.
  • The government needs to emphasize upon economic and social empowerment of women and girls, as well as targeted social and behaviour change communication (SBCC) campaigns. Increasing the minimum age of marriage of women will also lead to gender-neutrality.
  • Adolescents do not have a platform to discuss sexuality and physical integrity yet.
  • Increasing understanding of changes in body and mind during adolescence will be helpful in deciding on choosing a partner.
  • Encouragement for higher education, counseling for career, social and financial support for vulnerable families may enable girls to spend more years in school. This will automatically push the age of marriage.
  • The courage to say no to child marriage will be more when an environment is created for girls to realise their dreams. This will encourage them to be innovative and do things differently.

Conclusion

The minimum age of marriage, especially for women, has been a contentious issue on various grounds. It is high time that the laws dealing with same are changed in the spirit of Constitutional values for a progressive and evolving society.

Practice question for Mains

Critically evaluate the proposed idea of increasing the Minimum Legal Age of Marriage in India. Also List down the possible impacts of it.(250 Words)

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