Historical Evolution Of The Law
Early religious scriptures show that India has witnessed child marriage since pre-colonial times. The practice of Sati forced young girls to sacrifice themselves on top of their deceased husband’s funeral pyre. Occasionally, colonists identified Indians as “barbarians” but refrained from interfering with the practice out of fear of resistance. Rai Sahib Harbilas Sarda presented the Child Marriage Restraint Bill, 1927, establishing a minimum marriageable age of 14 years for females and 18 years for males. After that, The Child Marriage Restraint Act, 1929, as passed by the Imperial Legislative Council, was the first secular legislation to limit child marriage by establishing the marriageable age as 18 years for women. However, this law did not invalidate child marriage as it imposed sanctions on an adult man marrying a minor and the parents who encouraged such marriages. Moreover, the gravity of penalties and fines was too low to deter people.
As a result, The Prohibition of Child Marriage Act, 2006 (“PCMA”) brought three reforms: enhanced penalty for child marriage; enabled the parties to make child marriage voidable till up to two years after they attained maturity; empowered courts to take cognisance of such matters. According to UNICEF, at least 1.5 million girls under 18 are married in India each year – a third of child brides worldwide are in India. Over 16% of teenage females aged 15 to 19 are married. This disproportionate high rate of child marriage amongst girls shows international gender discrimination. Thus, on December 21, 2021, Smriti Irani, Minister of Women and Child Development of India, introduced The Prohibition of the Child Marriage (Amendment) Bill, 2021, in Lok Sabha.
Highlights Of The Bill
The Prohibition of the Child Marriage (Amendment) Bill, 2021 (“Bill”) amends PMCA to raise the minimum marriageable age of females from 18 to 21. Under Section 2(a), ‘child’ is defined as a male or female who has not completed twenty-one years of age.
To this effect, the Bill also amends the following Acts: (i) Indian Christian Marriage Act, 1872, (ii) Parsi Marriage and Divorce Act, 1936, (iii) Special Marriage Act, 1954, (iv) Hindu Marriage Act, 1955, and (v) Foreign Marriage Act, 1969. Thus, the Bill has an overriding effect over any other laws, customs, usage or practice governing the parties to the marriage.
Benefits Of The Bill
- Facilitating Better Health and Nutrition: Early marriage and, subsequently, early motherhood harm the health of the mother and the child. India’s Maternal Mortality Rate is at 113 (2018) – 113 maternal deaths for every 100,000 live births is far higher than the UN Sustainable Development Goals target of 70. Moreover, the Indian National Family Health Survey of 2015-2016 showed that in a sample of about 58% of women married before 18 years of age, the prevalence of children being stunted, wasted, and underweight was 37%, 23%, and 36% respectively. Moreover, the survey directly linked child marriage with child anaemia. Thus, this Bill would help improve nutrition and mental and physical health — decrease teenage pregnancies and maternal and infant mortality rates.
- Improved Literacy and Labour Workforce Participation: This Bill would facilitate better learning and working opportunities for women, increasing their participation in the labour workforce. Data from a longitudinal study reveals that only 10.3 % of the girls married before 21 transitioned to higher education. At the same time, 62.5 % of girls who got married after 21 had a chance to go to higher education/technical colleges. Furthermore, the study reveals that the age of marriage is significantly associated with labour market transitions, with only 5% of girls who married before 21 employed in regular salaried jobs compared to 13% amongst girls married at 21 and after. As per NFHS 4, the age of marriage is 17.4 for women with no schooling as opposed to 23 for women with 12 years of education.
- Psychological Well-being and Poverty: A study also reveals a significant difference in the psychological well-being of girls married before and after 21 years of age, with the latter showing significantly higher levels of well-being. Regarding the intergenerational transmission of poverty, the stunting levels of children born to girls married before 21 were also higher (39%) than those married at age 21 and above (35%). Data from the longitudinal study highlights that at age 26, only 29% of those married at 21 years and above had two or more children, compared to 77% of girls married before 21 years of age, having given birth to two or more children.
- Reduction in Child Marriage: The argument that the proposed amendment would increase instances of child marriage is not a cause to delay reforming archaic legislation, nor can the inefficient execution of PCMA be used to justify not amending the law. On the contrary, implementing the Bill would empower girls most susceptible to child marriages, notably those in rural India and from lower-income quartiles.
- Judicial Intervention: The Parliament relied on Supreme Court’s stance that women’s marriageable age should be 21 as the law must evolve as per the needs of our dynamic society. The court held that a woman’s right to procreate falls within the purview of the Right to Life, i.e. Article 21. Increasing the marriageable age would give women more sexual autonomy owing to maturity.
Key Issues And Analysis
- Overriding Personal Laws: The Bill is tinkering with the personal laws of many religions and infringes Article 25 of the Constitution. For example, Islam personal law permits a girl above fifteen years of age to marry.
- Intention v Implementation: According to the Parliamentary Standing Committee, “the bill’s primary goal is to improve women’s agency.” Various academics and activists believe that rather than increasing the marriageable age, the government should focus on increasing access to education for girls and reducing the poverty rate. According to the National Family Health Survey (2019-2021), 23.3 % of women aged 20-24 married before 18, indicating that the PCMA has been ineffective in preventing child marriages, particularly among the poor.
- Personal Autonomy: The Law Commission Report (2008) proposed lowering the legal marriageable age of males to 18 years, anticipating that this would bring the legal marriageable ages of women and men closer together. An individual is considered an adult after attaining 18 years of age.Essentially, they are legally capable of buying property, voting and entering into contracts, raising questions about citizens’ curtailed personal autonomy.
- Misuse of the Law: Some parties might misuse the legislation to legitimise their societal notions by annulling inter-religious or inter-caste weddings. The exploitation of laws in the past includes false filing of abduction and rape allegations under the Protection of Children from Sexual Offenses Act, 2012 and the Indian Penal Code, increasing the possibility of exploiting young girls by society.
- Economic and Cultural Factors: Economic and cultural considerations primarily contribute to early marriages among women, so raising the age might not make a difference. Nonetheless, studies show that with improved access to affordable and high-quality education, women married after turning 18. Similarly, NFHS 4 indicates enormous differences in the % of women marrying before 18, i.e. the mean age of marriage in the lowest wealth quantile is 17.6 compared to 22.3 in the highest wealth quantile.
Conclusion and Recommendation
As per UNICEF, child brides decreased 15% during the past decade – from 1 in 4 (25%) to approximately 1 in 5 (21%). However, about 650 million girls are married before adulthood. Countries must consult diverse stakeholders to meet Sustainable Development Goal 5.3, which targets preventing harmful practices against children by 2030. The recommendations are as follows:
- Empower women: On the one hand, the Bill overrides personal laws, curtails personal autonomy, and raises questions about the intended results of implementation. On the other hand, empirical research proves that higher marriageable age would facilitate better health for the child and the mother, greater female labour workforce participation, higher literacy rates, and women’s empowerment.
- Implementation: One-quarter of the problem is the sum of all the above issues, whilst three quarters lie in the legislation’s enforceability.
- Complimenting Legislation: To further the purpose of this Bill, complementing legislation should be enacted by the Parliament targetting the improvement of women’s health, education, and financial standing for the development of women between 15-20 years of age (especially for the lower-earning population considering this stratum is barely managing to meet the current regulation of 18 years of age).
About the Authors
Vrinda Bhardwaj is a former law clerk at the Supreme Court of India interested in the intersection of constitutional law, society and governance. Abhishek Yadav is a first-year law student from NLU Delhi whose interest lies in governance, law, and public policy.