The Union Cabinet decided to raise the legal age of marriage for women from 18 to 21 years on Wednesday, December 15. Men must be 21 years old to marry legally.
With this decision, the government would bring the marriage age for men and women to the same level.
Background
The law establishes a minimum age for marriage in order to effectively prohibit child marriage and protect kids from abuse.
Personal laws dealing with marriage in many religions have their criteria, which are generally based on custom.
For Hindus, the Hindu Marriage Act of 1955 stipulates that the bride must be 18 years old and the groom must be 21 years old. The marriage of a minor who has reached puberty is considered acceptable in Islam.
The Special Marriage Act of 1954 and the Prohibition of Child Marriage Act of 2006 both provide that women and men must be 18 and 21 years old, respectively, to consent to marriage. These laws are anticipated to be changed in order to implement the new marriage age.
For a variety of reasons, including gender neutrality, the Narendra Modi government decided to revisit the age of marriage for women. Early marriage and, as a result, early pregnancies have an impact on mothers’ and children’s nutritional levels, as well as their overall health and mental well-being. It also has an effect on the Infant Mortality Rate and Maternal Mortality Rate, as well as the empowerment of women who are denied access to school and livelihood due to early marriage.
Child marriage has decreased slightly in the country, from 27% in 2015-16 to 23% in 2019-20, according to the newly released National Family Health Survey (NFHS), but the government has been striving to reduce it even more.
Also Read: Is The Indian Law Allowing Child Marriage And Dowry In The Hindsight?
What The Experts Believe
Increases in the age of marriage for women have been opposed by child and women’s rights advocates, as well as population and family planning specialists, on the grounds that such legislation would force a huge section of the population into illicit marriages.
They argue that child weddings persist in India despite the legal age of marriage for women being kept at 18 years and that the decrease in such marriages is due to a rise in girls’ education and employment prospects rather than the current law.
According to them, the law would be coercive and would disproportionately affect marginalised people, such as Scheduled Castes and Scheduled Tribes, making them lawbreakers.
Child Marriage, The Cancer
Child marriage is a violation of human rights. Despite legislation prohibiting it, the practice persists: Before the age of 18, one out of every five girls in the world is married or in a relationship. In the least developed countries, that number more than doubles, with 40% of females marrying before the age of 18, and 12% marrying before the age of 15.
Child marriage puts their lives and health in jeopardy, as well as limits their future opportunities. Girls who are forced into child marriage are more likely to become pregnant when still in their teens, increasing the risk of difficulties during pregnancy and childbirth.
Poverty and gender inequality are poisonous ingredients in child marriage. Girls, who marry before becoming 18, are less educated and more likely to reside in rural areas. Many destitute parents assume that marrying their daughters will safeguard their future by ensuring that they will be cared for by another family.
This is particularly true in humanitarian emergencies when many parents are concerned about their ability to safeguard and care for their girls. Some parents incorrectly feel that marrying their daughters will protect them from sexual violence, which sometimes becomes more frequent in times of distress.
Some parents consider their daughters to be a burden or a commodity. Dowries further aggravate the situation: Younger brides often fetch smaller dowries in locations where the bride’s family pays a dowry to the groom’s family, creating an incentive for parents to marry their daughters off early.
Parents in dire situations may marry off their daughters as a source of cash in places where the groom’s family pays a bride price.
Child marriage is frequently the result of a lack of alternatives. When given the option, girls choose to marry later.
Scene Around The World
Estonia
Estonia currently has the lowest marriage age in Europe, allowing teenagers to marry with parental consent at the age of 15. Meanwhile, according to a report by the Independent States, the Spanish government declared in 2015 that it will raise the marriage age from 14 to 16 to bring it in line with the rest of Europe.
United Kingdom
In England and Wales, people can marry when they are 18 years old or, with parental agreement, when they are 16 or 17 years old.
According to a BBC article, there is no rule forbidding religious or cultural rituals held under this age that are not registered with local councils.
Trinidad and Tobago
While the official marriage age for men and women is 18 years old, Muslims and Hindus have their own Marriage Act, according to the US State Department’s 2014 human rights report on Trinidad and Tobago. Muslims can marry when they are 16 years old for men and 12 years old for girls, whereas Hindus can marry when they are 18 and 14 respectively. The age ranges for Muslim marriage are shown in the table.
Niger
In Niger, family law addresses child marriage, which is a branch of law derived from a variety of sources, including the Civil Code, customs, and international legal treaties. The Civil Code sets an 18-year-old minimum age for boys and the 15-year-old minimum age for girls for marriage, emphasizing a considerable gender imbalance in the topic, but most marriages are conducted under customary law.
According to a Humanium survey, 76 per cent of Niger’s females marry before the age of 18, and 28 per cent marry before the age of 15. Niger has the highest rates of child marriage in the world, according to UNICEF, putting the country at the top of worldwide rankings.
In this country, children in rural areas are more affected than those in metropolitan ones. Aside from that, educated girls are less likely to be subjected to this practice than girls who did not have access to education. For economic reasons, the poorer the family, the greater the probability that the girl would be exposed to this procedure.
Indian Youth and Their Ability to Consent
The age at which a person is regarded legally competent to consent to sexual conduct is known as the age of consent. Minors are deemed incapable of understanding nature and the consequences of their acts due to their age and understanding immaturity. As a result, the law prohibits sexual conduct with or among children under a certain age.
The age of consent was first set at 10 years in the Indian Penal Code of 1860, which was only for girls. In 1891, it was raised to 14, in 1925, 16 in 1940, and 18 in 2013. Sexual behaviour with a girl under the legal minimum age constituted rape, regardless of the girl’s permission.
We didn’t have a consenting age for boys, and it wasn’t until the twenty-first century that our legislators realised the dangers of sexual abuse of minor males. In 2012, we passed gender-neutral legislation to protect children from sexual abuse. POCSO set the age of consent at 18 for both boys and girls.
Is it the law, society, the state, or biological elements that determine the age of adulthood? In India, we have distinct adulthood ages for various things. One is mature enough to
- vote at the age of eighteen
- drive at the age of sixteen (gearless vehicles) or eighteen (motor vehicles)
- drink at the ages of eighteen, twenty-one, twenty-three, and twenty-five (different states have different drinking ages)
- adopt at the age of fourteen, and
- marry at the age of eighteen (for girls) and twenty-one (for boys) (boys)
The Majority Act of 1875, which set the age of majority at 18 years, was the first law on the issue (amended in 1999). The Sarda Act of 1929, also known as the Child Marriage Restraint Act, set the marriage age at 14 for girls and 18 for boys. In 1978, this was raised to 18 and 21 for girls and boys, respectively.
The Prohibition of Child Marriage Act, 2006, has since been repealed and replaced. Marriage and family are addressed under Article 16 of the Convention on the Elimination of Discrimination Against Women (CEDAW).
It states that child marriages should be illegal. Even though India joined CEDAW in 1980, child marriages are still classified as voidable rather than void. As a result, until a child bride asks to have her marriage annulled, the marriage is considered genuine.
The Indian Penal Code does not recognise marital rape, hence the husband has the right to complete his marriage. This position changed in 2017 when the Supreme Court, in the case of Independent Thought. Union of India, read down the exception to Section 375 that allowed males to marry their brides between the ages of 15 and 18.
Nonetheless, it is sad that Indian wives are unable to exercise their right to agree. Even though she is legally married, she is not allowed to have sex if she is under the age of 18, and if she is beyond the age of 18, she is unable to refuse because matrimonial consent is presumed.
The idea of the right to private life, as defined by article 8 of the European Convention on Human Rights, encompasses the right to sexual life. However, this allows for legitimate interferences or limits that are required in society, such as the protection of health and morals.
As a result, modern states are justified in establishing an age of consent, which must be evaluated in light of children’s physical, mental, emotional, and psychological well-being. Another thing to consider is the socio-cultural environment.
The issue here is how the age of consent is read and applied in India. Love is taboo in our society, and public displays of affection are frowned upon. Honour killings are a sobering reminder of our evil side.
As a result, there are a lot of occasions where young couples feel compelled to elope because they want to be together. In every scenario, the girl’s father will file a kidnapping complaint against the boy. It makes no difference that the girl accompanied him voluntarily because kidnapping is a strict liability offence.
Can we ignore the crucial necessity of Men’s rea, or guilty mind, before convicting someone of a crime? In criminal proceedings, strict liability is incompatible with the ‘presumption of innocence.’ It also infringes on the right to life and personal liberty, both of which need freedom of choice.
“What if the minor misrepresents the age to an adult or lies about his/her age, or cases, where the accused reasonably, believes the minor to be an adult? Would it not be unfair to convict on the basis of a 159-year-old law (IPC was drafted in 1860) without considering the changing ethos?”, Bhageshwari Deswal asks in her article.
Furthermore, when the pair is captured, the girl bows into her family’s pressure and admits that she was not a consenting partner in the couple’s sexual activity. As a result, the boy gets charged with both kidnapping and rape.
When sex occurs with a juvenile, POCSO mandates hefty punishments, but the law fails to provide an acceptable remedy when both parties are minors. The Indian Evidence Act, Section 114A, establishes a presumption of lack of consent, and the boy bears the burden of proof in proving that the girl consented.
According to studies, youngsters are reaching puberty sooner than in the past. There have been allegations of children being introduced to sexual practices at a young age. The increased exposure that today’s youngsters experience is directly related to early sexual activity. Online, there is a wealth of adult entertainment and pornographic material.
During their adolescent years, their hormones are in overdrive. We need to guide them, yet imposing a rigid limit will have unfavourable implications. The forbidden fruit is always more profitable, and rigorous limits just add to the intrigue.
Conclusion
Thus, it is pretty clear now that increasing the age of marriage is not going to help anyone much. What must be done, then?
Adults prefer to set limits on adolescent sexuality rather than deal with related concerns because it is more convenient. We deny people access to protective measures and safe medical procedures by criminalising even consensual sexual behaviour.
Teenage girls seek out quacks for abortions and STD treatment. A law setting an age of consent cannot be abolished, but it must be interpreted in a way that protects our children from both abuse and unjust punishment. This legislation should have a dual goal of educating people and enforcing reforms.
Will we be able to live in a world that is proactive and progressive? The change starts with us, and it is not going to be an easy one. We are used to a society that deals better with intimidation than awkwardness.
Image sources: Google Images
Sources: The Times of India, The Indian Express, United Nations Population Fund, (+more)
Connect with the Blogger: Debanjan Dasgupta
This post is tagged under: The Union Cabinet, The Government of India, Hindu Marriage Act 1955, Prohibition of Child Marriage Act 2006, The Special Marriage Act 1954, Narendra Modi, National Family Health Survey, Scheduled Castes, Scheduled Tribes, Poverty, gender inequality, child marriage, marital rape, minor rape, dowry, Estonia, United Kingdom, Trinidad and Tobago, Niger, UNICEF, Muslim and Hindu Marriage Act, US State Department, Indian Penal Code, POCSO, Convention on the Elimination of Discrimination Against Women (CEDAW), The Prohibition of Child Marriage Act 2006, European Convention on Human Rights, The Indian Evidence Act, Section 114A, sexual activity, consensual sexual behaviour, consent, Indian youth, Supreme Court, physical, mental, emotional, psychological, Union of India, Section 375
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