The age threshold for men should be reduced to 18 instead of raising the marriageable age for women to 21, considering the constitutional interpretation of equality and from the perspective of foreseeable repercussions
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CHILD marriage is still widely prevalent in India with one in three of the world's child brides living here. According to the UNICEF study 'Ending Child Marriage: A profile of progress in India' published in February 2019, approximately, one in four young women in India were married before turning 18 years of age. The National Family Health Survey-5 of 2019-21 found that 14.7 per cent of women in urban areas and 27 per cent in rural areas in the 20-24 age group were married before 18 years of age.
Though there have been efforts to eradicate the scourge, successive governments have considered increasing the minimum age of marriage as the only solution, with the current age threshold for women being lower (18 years) compared to men (21 years). Such variation in age limit can neither be justified scientifically nor on any other basis.
The Prohibition of Child Marriage (Amendment) Bill, 2021, passed by the Lok Sabha last December, sought to amend the Prohibition of Child Marriage Act, 2006, to increase the minimum age of marriage for women from 18 to 21 years.
The Bill aims for equality in marriage by raising the minimum age of marriage for women to 21 years of age, a point stressed by Prime Minister Narendra Modi, who said in January that it would enable the "daughter of India to build a career for herself and become Aatmanirbhar".
However, the age threshold for men should be reduced to 18 years instead of raising the marriageable age for women considering the constitutional interpretation of equality and from the perspective of foreseeable repercussions. Though the possibility of raising the age threshold in the future should not be ruled out, such a move is unwise at this juncture.
In June 2020, a ten-member task force headed by activist and former Samata Party leader Jaya Jaitly was formed to look into the feasibility of increasing the marriageable age for women, with the broader mandate of studying the age of motherhood, maternal mortality, low nutrition levels and teenage pregnancies.
In its recommendations to the Union Women and Child Development Ministry in December 2020, the task force suggested increasing the legal age of marriage for women, besides several other suggestions. Based on the recommendations, the Bill was introduced in the Lok Sabha one year later. Clause 3, by changing the definition of 'child', contemplates increasing the marriageable age for women from 18 to 21. The Bill would amend all personal laws in this matter.
Before evaluating the merits of the proposed provisions in the Bill, the task force's assumptions should be examined. With the intention of eradicating child marriage, it assumed that the tradition is a function of the minimum age threshold.
The committee seems to believe that merely prescribing a higher age, which if violated, has the same penal consequences as earlier, will act as a deterrence. It turns a blind eye to the social state of affairs surrounding the victims and the perpetrators of child marriage.
The Bill cites the following reasons for increasing the age bar for women: A) The Constitution guarantees equality of sexes and therefore, women's marriageable age should be on par with that of men; B) giving women an opportunity to complete their vocational training/education; C) reducing maternal mortality rate and teenage pregnancies; and D) disallowing any customs or practices of any religion from perpetuating child marriage.
It would be apt to gauge the judiciary's response to the marriageable age debate. A public interest litigation (K.K. Ramesh versus The Government of India) was filed at the Madras High Court in 2014, requesting for increasing the marriageable age for men and women to 25 and 21 years, respectively. However, Justices S.K. Kaul and M. Sathyanarayanan dismissed the petition over their primary concern regarding the "mental and psychological maturity" of women.
“The task force seems to believe that by merely prescribing a higher age, which if violated has the same penal consequences as earlier, will act as a deterrence. The task force turns a blind eye to the social state of affairs surrounding the victims and the perpetrators of child marriage.
Several considerations indicative of women attaining majority were made. However, the crux of the court's reasoning was whether those could be equated to attaining maturity in marriage. If the answer is in the affirmative, then it would only be fair to apply it in the case of men too. If the answer is negative, then not only should the marriageable age be reconsidered, but another age which would be indicative of psychological and mental must be determined. Furthermore, the plea to simultaneously increase the marriage age of men wouldn't necessarily serve the purpose.
The high court finally dismissed the petition by saying that it was not the court's duty to decide these matters because there are multiple social and legislative aspects to it and it was the government's task to look into them.
There were three important points in the court's reasoning:
Around 10 million girls worldwide are at risk of child marriage in the next decade and India constitutes a third of them, according to the UNICEF. A minimum of 1.5 million girls get married before turning 18 years of age. Despite the prohibition of child marriage and legal penalties against it, the problem remains. Obviously, setting a marriageable age barely acts as a deterrent despite entailing penal consequences.
A law should not be abstract. Since its implications are significant, its formulation should consider the social and political realities of the respective jurisdiction. While it is not possible for legislators to contemplate every possible issue that may crop up once a law is passed, the obvious consequences cannot be ignored.
The committee's first reason for increasing the age of women was to ensure equality between the two sexes. Though there is no scientific basis for having different legal marriageable ages for men and women, they are not treated in the same manner. In several instances, women are forced to get married before they attain the minimum age required while men are not.
The Bill's proposal to increase women's minimum age is based on the myth that it would accord greater equality to them. The consequences would further exacerbate their conditions, leaving them stranded between dire social conditions and the closed door of the law that previously gave them the choice of free will at attaining majority.
Most recent cases of child marriage involve girls as opposed to boys. This makes it evident that women and men are treated unequally regarding marriage—this is not to say that men and women should not have the same minimum age threshold.
However, equality of sexes isn't a valid argument for raising women's minimum age of marriage. Such a move would exacerbate the situation of women. Instead, the minimum age of marriage for men should be decreased to 18 years. Therefore, the task force's first reason does hold ground.
While reasons B, C and D have good motives, they may not be effective since child marriages will continue. But if increasing the marriageable age for women results in a slight decrease in the number of child marriages, why should such a law not be passed?
Women are not accorded enough decisional autonomy compared to men. In terms of affecting decisional autonomy, the Bill would harm women. Women below the age of 21 would continue to be married off. Besides, they will not be free to marry someone of their choice either because the law will fail to protect that choice.
Considering the trajectory of judgments in such matters, it would be safe to assume that in at least some of these child marriage cases through which a woman has exercised her will, the prosecution would successfully prove that she was coerced into marrying. However, this reason is not enough.
A stronger reason for not passing the Bill is that a law should not force anyone to violate it to protect themselves. For example, if a woman's family tries to forcefully get her married before she turns 21, the only way she can decide for herself would be to get married to someone of her choice. In such a scenario, she would be forced to unwillingly violate the law because she has no other viable option. The only other choice would be to marry according to her family's wishes.
If the goal is to achieve equality — as the Constitution directs — it is only fair that the minimum age threshold for men is reduced to 18. This will also protect the decisional autonomy of men who are capable of making rational choices and reduce the interference of elders in their choices.
Proponents of the Bill can argue that the law allows a minor to seek annulment of the marriage. However, the law only provides a limited window of two years after the solemnisation of marriage to plead for annulment. Social conditions and matrimonial pressure might not let the minor take such a step.
UNICEF has recommended 18 years as the minimum marriage age for both men and women. The United Nations Convention on the Rights of Child recommends that it be decided as per the age of attaining majority in the respective country. Additionally, if the goal is to achieve equality — as the Constitution directs — it is only fair that the minimum age threshold for men is reduced to 18 years of age.
This will also protect the decisional autonomy of men capable of making rational choices and reduce the interference of elders in their choices. However, one should not have the misconception that reducing the age bar to 18 years implies that many men will start marrying at that age.
In contrast, by magnifying the say both men and women have in their marriages, the law will encourage them to decide with the utmost deliberation. When the law tries to curb decisional autonomy, individuals make impulsive choices to somehow gain their voice back.
The Bill's proposal to increase women's minimum marital age is based on the myth that it would accord greater equality to them. The consequences would further exacerbate their conditions, leaving them stranded between dire social conditions and the closed door of the law that previously gave them the choice of free will after attaining majority.
This contention in no way rejects the ability of governmental or legislative action to raise women's conditions to a level wherein they do not face the brunt of child marriage in future. The first basis of the argument against the proposal lies in the present conditions and those foreseeable. The second basis is decisional autonomy, which must be accorded to all individuals in a marriage.