MINIMUM AGE OF MARRIAGE FOR WOMEN IN INDIA TO BE CHANGED

 

Prime minister Narendra Modi announced in his independence day speech in 2020 that the centre  will decide on the recommendations of a committee set up to reconsider the minimum age of marriage of women in India. At present, the law prescribes a minimum age of 21 years for men and 18 years for women ( Prohibition of child marriage act 2006).

A high level committee is setup under the chairmanship of Mrs. Jaya Jaitley by the Ministry of women and child development, Government of India. The 10 member committee also has NITI Aayog member Dr. V.K. Paul as one of its members. There is quite a possibility of increasing the minimum age of marriage for women from 18 years to 21 years.

While deciding on the issue, the committee is going to examine the following factors :-

·       Age of motherhood.

·       Maternal mortality rate

·       Rectified age of marriage for women

Before the British era, personal issues such as marriage, divorce, adoption, succession etc were governed by various personal laws which were mostly uncodified. In the case of Dadaji Bhikaji Vs Rukhmabai 1885, Rukhmabai(a minor) was married to Dadaji but stayed with her widowed mother even after marriage. After a couple of months Dadaji requested her to come back and stay in her In – Laws house but she refused to do so. Subsequently, Dadaji filed a suit for the restitution of conjugal rights. The Court gave the verdict in favour of Rukhmabai and Justice Robert Hill Pinhey made note that in this case, Rukhmabai was a young woman and was married off in “helpless infancy” and hence cannot be forced. Rukhmabai Raut became the first women in British India to practice medicine.

The British tried to bring certain reforms but were strongly opposed by  extremists like Lokmanya Bal Gangadhar Tilak for interfering with the personal laws of Indians. However according to IPC 1860, 10 years minimum age for sexual intercourse was fixed for girls and the Age of consent act 1891 increased this age from 10 years to 12 years.But there was no particular legislation which laid down the age of marriage. Sosexual intercourse with a girl under the age of 12 was considered rape even if the girl was the wife of the perpetrator.

Finally, the age of consent (Amendment) act 1927, made the minimum age if marriage fir girls as 12 years.SARDA act 1929(Named after Judge Harbilas Sarda)fixed the age of marriage for girls at 14 years and boys at 18 years which was later amended (in 1978) to 18 for girls and 21 for boys. After independence, special marriage act 1954 and Hindu marriage act 1955 set the age of marriage as 18 years for females and 21 years for males. Muslims assume the age of puberty as the proper age of marriage. However, the prohibition of child marriage act is applicable for all religions. Persons who can be punished under the Law include:-

·       Whoever performs, conductor directs or abets any child marriage.

·       A male adult above 18 years marrying a child (Section 9).

Any person having charge of the child as minimum 2 years imprisonment or ₹ 1 lakh fine or both.

 

However, over all these years this act has also invited criticisms by various thinkers for some lacunae and shortcomings.

 Shortcomings of Child Marriage Restraint Act, 1929 Act :-

·       It aimed only at restraining child marriages in the country and not its prevention or prohibition.

·       It did not identify authorities responsible for preventing child marriages(Section 13,16)

 

 

It is also a matter of discussion that why did this age gap between the two genders exist? And what is the minimum age set by laws in countries other than India.

·       Practice custom

There is no reasoning in the law for having different legal standards of age for men and women to marry. The laws are a codification of custom and religious practices.

·       Observation of law commission

The Law Commission consultation paper has argued that having different legal standards "contributes to the stereotype that wives must be younger than their husbands".

International Perspective

Marriage age is highly correlated with wealth. People in poorer countries like Malawi and Laos tend get married earlier than in richer countries like Norway and Singapore. As a country gets richer, the population tends to starts marrying later. For example, the average marriage age in China rose from just 22 for women and 24 for men in 1990, to 25 and 27 respectively in 2016—a period when the country experienced rapid economic growth.

Not only does the age of marriage tend to get higher with more wealth, the age difference between men and women also declines. The difference in average age of marriage for men and women is less than 2 years in rich countries like Japan, Australia, and the US, but over 6 years in poorer Cameroon and Morocco.

·       According to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Article 16

"On the basis of equality of men and women right to choose a spouse and to enter into marriage only with their free and full consent."

• Universal Declaration of Human Rights (UDHR) Article 16 states that :-

"Men and women of full age, without any

limitation due to race, nationality or religion,

have the right to marry and to found a family.

They are entitled to equal rights as to marriage,

during marriage and at its dissolution."

Now are there any constitutional provisions which are violated by fixing different ages of marriage for men and women? The answer is “YES”. Articles 14 and 21 of the Indian Constitution, which guarantee the right to equality and the right to live with dignity, are violated by having different legal age for men andwomen to marry.In 2014, in NALSA vs Union of India, the Supreme Court said that justice is delivered with the "assumption that humans have equal value and should, therefore, be treated as equal, as well as by equal laws.”

CONCLUSION

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". While the committee prepares it’s report, I would leave all the readers of this blog with a question – “What should be the new marriageable age for women – above, below or equal to that of men’s ?”. What is your opinion, do let me know below.