The idea and the criticism of raising the marriageable age of women
The Prohibition of Child Marriage (Amendment) Bill, 2021, once enacted, will apply to all communities and will amend all existing personal laws across faiths
New Delhi: The Centre on Tuesday tabled a bill, which seeks to raise the age of legal marriage for women from 18 to 21 across all faiths, in the Lok Sabha amid massive protests by the Opposition, and also sent it to a parliamentary standing committee for further discussion.
The Prohibition of Child Marriage (Amendment) Bill, 2021, once enacted, will apply to all communities and will amend all existing personal laws across faiths. The bill will amend the provisions of the Indian Christian Marriage Act, 1872, the Parsi Marriage and Divorce Act, 1936, Muslim Personal Law (Shariat) Application Act 1937, Special Marriage Act, 1954, Hindu Marriage Act 1955, Foreign Marriage Act, 1969 in terms of the marriageable age.
While introducing the bill in Parliament on Tuesday, Union minister for women and child development, Smriti Irani said, “I would like to present that women equality in our country needs to be seen in (terms of) age of marriage. Invoking different marriage laws of different faiths, I rise to introduce the amendment bill.”
“I understand the social, cultural and sentimental issues associated with this decision. On behalf of the Government, I would request that this Bill be sent to the Standing Committee,” the minister said.
The bill, which will further amend the Prohibition of Child Marriage Act, 2006, will be examined by the House panel and after that, it would submit its recommendations before the Parliament.
Legal marriage age for women in India
In Independent India, there have been two revisions in the child marriage act in terms of the marriageable age. In 1949, the minimum age for girls was increased to 15, and in 1978, the minimum age was increased for both women and men to 18 and 21 years, respectively.
However, despite the increase in the minimum age, cases of child marriages are rampant in India. According to the National Family Health Survey (NFHS-5) (2019-20), every fourth woman in the age group of 20-24 married before turning 18. The survey found that the problem of underage marriages is more prevalent in rural areas where 27% of such marriages were reported during 2019-20 against 14.7% in urban areas.
Similarly, the minimum age for marriage for women is fixed at 18 years under several marriage acts including Special Marriage Act, Hindu Marriage Act, and Foreign Marriage Act. However, the Muslim personal law allows marriage if the boy and the girl have attained puberty, with the consent of their parents.
The Prohibition of Child Marriage (Amendment) Bill, 2021, seeks to fix the same marriageable age for both males and females across all faiths, superseding existing marriage and personal laws.
“Women from all faiths, under Hindu Marriage Act or the Muslim Personal Law, should get equal rights to marry,” Irani said while presenting the bill in the Parliament on Tuesday.
The genesis of the bill
During the budget speech 2020-21, Union finance minister Nirmala Sitharaman first proposed setting up a panel on the "age of girls entering motherhood". “Women’s age of marriage was increased from 15 years to 18 years in 1978, by amending the erstwhile Sharda Act of 1929. As India progresses further, opportunities open up for women to pursue higher education and careers. There are imperatives of lowering maternal mortality rate as well as improvement of nutrition levels. The entire issue about the age of a girl entering motherhood needs to be seen in this light,” she said.
In June 2020, the WCD ministry constituted a task force to re-examine the age of marriage and how it affects social indicators such as infant mortality, maternal mortality, and nutrition levels among mothers and children. The committee was headed by Jaya Jaitley and included NITI Ayog member VK Paul, and secretaries of WCD, health and education ministries, as its members.
During his address to the nation on India's 74th Independence Day last year, Prime Minister Narendra Modi said that the Centre was reconsidering the minimum age of marriage for girls in India. “The government is constantly concerned about the health of daughters and sisters. To save the daughters from malnutrition, it is necessary that they're married at the right age,” he said.
In December last year, the Jaitely committee submitted its report with the NITI Ayog recommending that the marriageable age of women should be increased to 21, at par with the men.
What did the committee recommend?
The Jaya Jaitely-led panel recommended increasing the legal age of women from 18 to 21 after conducting surveys among youth across 16 universities. According to government officials, around 70% of the 2300 (approx) students surveyed favoured raising the legal age to 21.
The committee members have maintained that the recommendation was made solely to promote women empowerment. The committee further recommended planning public awareness campaigns to encourage societal acceptance of the decision. It emphasised increasing access to education for girls to make them financially independent.
On December 15, the Union cabinet cleared the proposal to raise the minimum age of marriage for women.
What does the Bill state?
The bill states that the existing laws do not adequately secure the constitutional mandate of gender equality in marriageable age among men and women. “Women are often put in a disadvantageous position in regard to higher education, vocational instruction, attainment of psychological maturity and skill-sets, etc. Entering into the employment sphere and being part of the workforce to make themselves self dependent ... is a critical area,” the bill adds. “These disadvantages perpetuate the dependence of women on men.”
It seeks to modify the definition of a child, stating that it means “a male or female who has not completed 21 years of age”. It also seeks to make consequential changes to various personal laws relating to the marriage of different communities to ensure a uniform marriage age.
The draft legislation seeks to amend seven personal laws – the Indian Christian Marriage Act; the Parsi Marriage and Divorce Act; the Muslim Personal Law (Shariat) Application Act; the Special Marriage Act; the Hindu Marriage Act; Hindu Minority and Guardianship Act and the Foreign Marriage Act, in terms of age.
For instance, according to the bill, in Hindu Marriage Act, 1955, clause (iii) in Section 5, the words "18 years", will be substituted by “21 years”. Similarly, in section 4, in clause (c) of the Special Marriage Act, 1954, 18 years will be replaced by 21 years.
The bill reiterated that increasing the marriageable age of women to 21 would help lower maternal and infant mortality rates while improving nutrition and sex ratio at birth. The central government will offer a grace period of two years from the date the legislation receives presidential assent.
On Tuesday, some Opposition members in Parliament protested that the proposed law limits rights under several personal laws in violation of fundamental rights guaranteed in the Constitution.
“It is a retrogressive amendment. This is against the right to freedom under Article 19. An 18-year old can choose a Prime Minister, can have a live-in relationship, can have sexual relations under POCSO Act, but the Government is denying them the right to marriage. What have you done for the 18-year old? The women’s labour force participation in India is lower than in Somalia. Sir, 89 per cent of the fund for ‘Beti Bachao, Beti Padhao’ was used for other multifarious publicity,” said Asaduddin Owaisi of the All India Majlis-e-Ittehadul Muslimeen.
Experts also said that instead of bringing a law, the government should promote education to curb child marriages. “No one is in disagreement that women should not be married early but if we are looking for answers (to this issue) in a law that is the biggest mistake we are making. We need to make investments in educating both girls and boys so that they themselves don’t get married early. The government cannot pass a deterrent law to bring this change,” said Bharti Ali, Director of HAQ: Centre for Child Rights.
According to the state of world population report 2020 by the United Nations Population Fund (UNFPA), in India, 51% of young women with no education and 47% of those with only primary education had married by age 18. However, 29% of young women with secondary education and 4% with post-secondary education were married before 18.
Ali also raised concerns over the possibility of further suppression of women. “It will blur the line between a forced marriage and a marriage by choice. Some young people are marrying by choice for various reasons. Some girls are in very disturbing and violent situations and they feel getting married to someone who lives with them is the only way to get out of that situation. Are we going to criminalise them or put them behind bars for exercising their choice?” she asked.
Ali said that it may affect the adolescents from deprived communities. “As per the 2011 census, around 44% of adolescents belong to the Scheduled Castes and another 16% belong to the Scheduled Tribes and then there are minority communities. The implication is going to be on these communities more than anybody since when people exercise their choice there will be cases of interfaith and inter-caste marriages…Also, it will keep these youngsters away from accessing any reproductive and sexual healthcare,” she said.