Context: The Himachal Pradesh State Assembly on Tuesday (August 27, 2024) passed a Bill increasing the minimum age of marriage for women from 18 to 21 years in order to support gender equality and higher education.
Evolution of the Law
The concept of a minimum age for marriage in India has evolved significantly.
- The Indian Penal Code of 1860 was one of the earliest laws to address this issue, criminalizing sexual intercourse with girls under the age of 10.
- The Child Marriage Restraint Act, 1929, commonly known as the Sarda Act, set the minimum age of marriage at 16 for girls and 18 for boys. This was later amended in 1978, raising the age to 18 for women and 21 for men.
- Hindu marriage act (1955), Indian Christian marriages act (1872) and Special Marriage Act (1954) prescribed minimum age of marriage as 18 years for bride and 21 years for groom.
- Prohibition of Child Marriage Act, 2006 prohibits marriage below 18 years for women & 21 years for men.
- In June 2020, A task force led by Jaya Jaitly was set up to examine the age of motherhood and its implications. The panel's report, submitted in December 2020, included raising the age of marriage as one of its recommendations.
- In 2021- Union Cabinet approved a proposal to raise the legal age of marriage for women from 18 to 21 years, aligning it with the legal age for men. This decision stems from the recommendations of a committee led by Jaya Jaitly.
Rationale for raising minimum age of marriage for women
- Right to Equality: Constitution guarantees gender equality as part of fundamental rights and guarantees prohibition of discrimination on grounds of sex. The existing law do not adequately secure Constitutional mandate of gender equality in marriageable age among men and women.
Also, aligns with other legal rights, such as voting and entering contracts, which are granted at 18 years.
- Breaking intergenerational cycle of Malnutrition: Incidence of early marriage and childbearing are important causes of undernutrition in India. Children born to teenage mothers are more likely to be undernourished than children of adult mothers. India is home to more stunted children than any other country and is one of the ten countries with the largest burden of teenage pregnancy.
- Reducing MMR and IMR: It is important to bring down incidence of teenage pregnancies, which are not only harmful for women's overall health but also result in more miscarriages and stillbirths.
- Increases Female labour force participation: Early marriage often reduces women labour force participation and increasing legal limit of minimum age will give more chance for women to work.
- Early marriages reinforce patriarchy: Early marriages reduces educational and employment opportunities for women and make them financially dependent on men, which eventually results in skewed division of labour in domestic sphere.
- Population control: Age of marriage of females is a key factor that influences fertility. Demographic studies have revealed the apparent link between early marriage and increasing fertility rates.
- Legal Precedents and International Commitments:
- Law Commission Report (2008): Recommended a uniform age of marriage at 18 years.
- National Human Rights Commission (2018): Supported equal marriage age for both genders.
World Bank estimated that developing countries like India can save billions of dollars if marriage before age of 18 was eliminated due to reductions in fertility and consequent reductions in public health investments due to fewer births.
Arguments Against
- Restriction on choice of marriage: Increasing the marriage age to 21 may enhance parental control over young adults, especially girls, limiting their autonomy and personal decision-making. The child marriage law has been misused by parents to control eloping daughters, and raising the age may extend this misuse until the girls turn 21.
- Legal limits are not successful: According to NFHS-5 (2019-2021), 23.3% of women aged 20-24 years married before the age of 18, which shows that Prohibition of Child Marriage Act (PCMA), 2006, has not been successful in preventing child marriages.
- Depriving legal protection: The Prohibition of Child Marriage Act (PCMA) allows minors to nullify their marriages up to two years after reaching adulthood. Raising the marriage age could complicate this provision, as young girls might not have the capacity to annul their marriages at 19 or 20.
- Poverty is the underlying reason: Families often marry off daughters early due to economic hardships and lack of educational opportunities, which may not be addressed by merely raising the age limit. According to an analysis of NFHS-4 (2015-2016) data, 56% girls were married below age of 21 and this figure was as high as 75% among poorest category of population.
- Misuse of Law: Existing laws like the Protection of Children from Sexual Offences (POCSO) Act have been misused by families to control teenagers, and raising the age could exacerbate this issue.
- Questions arise about how the change would impact existing laws like POCSO, particularly regarding consensual relationships between 18-20-year-olds.
WAY FORWARD
Instead of focusing on age of marriage, following steps may eventually reduce the age of marriage
- counselling on early pregnancies, access to healthcare, and sustained efforts to keep girls in school.
- Social awareness campaigns focusing on women's sexual and reproductive health and rights are crucial to achieving the intended outcomes.
- Conditional cash transfer schemes to improve attendance of girls in schools and skill training.
- Ensuring a safe environment to women free from constant threat of rape and sexual assault which is why girls are married off early.
Good intentions alone are insufficient to drive social change. Without widespread societal support and a focus on addressing underlying issues, coercive laws may fail to deliver the desired outcomes.
The journey towards true gender equality requires more than just legal reforms; it demands a sustained and holistic approach to empower women in all aspects of their lives.