LAST month, the Union Government had proposed raising the minimum legal age of marriage for women from 18 to 21 years. Currently, the minimum legal age for women to marry is 18 years; for men, the corresponding age is 21 years.
A bill to formalize such a legal change was presented in the Lok Sabha on December 21. However, after resistance from the opposition parties, it was sent to a parliamentary panel for further evaluation. As per the bill, the new minimum marital age for women shall prevail over all the personal laws; therefore, the legal age of marriage will be raised for all females regardless of their religion.
Flavia Agnes has been one of the most prominent voices opposing this proposed change. Agnes is a women’s rights lawyer and pioneer of the women’s movement in India, focused on the issues of gender and law reforms. She has written extensively on gender and law, law in the context of women’s movements, minorities and the law, and on the themes of domestic violence, feminist jurisprudence, democracy and secularism. She is a practicing advocate at the Bombay High Court, and is the co-founder of MAJLIS, “a legal and cultural resource centre” that works for the protection and promotion of women and children’s rights through legal representation, advocacy and training. She is a visiting faculty at several law schools such as the National Law School of India University, Bangalore, the National Academy of Legal Studies and Research, Hyderabad, the W.B. National University of Juridical Sciences, Kolkata, and O.P. Jindal Global (Institution of Eminence Deemed to be University), Sonipat, and is a part of the Global Feminisms project.
The Leaflet spoke with Agnes about the reasons behind her views on the proposal.
TL: You’ve come out against the bill to raise the marital age for women in the media. Could you provide a gist of the objections you have against the Bill.
A: It will only criminalize marginalized communities. I agree that girls should not get married before 21, so there is no problem there. The problem is whether we need a criminal law to ensure this. That is the core issue.
What type of families marry their daughters young? Those were the girls who aren’t sent to school. When girls aren’t sent to school, parents are worried about leaving their daughters home because of the threat of rape, so they marry their daughter young. Why they don’t send them to school is because in so many of our villages, there are no schools. The parents are poor and marginalized.
We don’t need a criminal statute to eradicate child marriages. We need to improve the socio-economic conditions of the marginalised communities to prevent child marriage.
Twenty-three per cent of marriages are underage marriages, that is, below 18 years. In 1978, the age of marriage was increased for girls from 15 to 18 years. After 40 years, we still have 23 per cent of underage marriages, which is a large number. If they bring this amendment, a lot more marriages will be considered underage marriages, so you’re only creating a situation where you’re criminalizing a lot more families for getting their daughters married at a young age. What you need to do is to construct more schools – affordable schools, and support the family, so that they become economically stronger; then the girls will be allowed to opt for higher education, vocational training etc. These measures will automatically increase the age of marriage of girls from these communities. It cannot be achieved by bringing in a criminal provision. This will not help to change things on the ground. It will give a liver in the hands of the powerful in a village to harass marginalized communities: children from Dalit and adivasi families.
What have we done in 70 years? We should have had schools in every village. This pandemic has made the situation even worse. There are a large number of children who have never gone to school at all, and there’s a huge number that have dropped out of school. The only option for these families is to marry their daughters young. What are we doing to prevent this?
The government says that the nutrition level will increase, and that this is a measure for women’s empowerment. But if the girl child is weak, she is weak from birth, because of malnourishment. There is malnourishment because there is not enough food to eat in the family. When there’s not enough food to eat, girls become the most neglected. So we need to raise the economic status of our population in order to prevent malnourishment and not presume that by stroke of a pen, by changing the age of marriage to 21 years, malnourishment will disappear and girls will automatically get empowered. For instance, among Brahmins, in the century before last, the girls were supposed to get married off before they menstruate. Over a period of time, due to social reform movements and because of economic progress in the community, among the higher castes, gradually the age at which girls were married increased. So now girls get married around the age of 25 years after graduation and acquiring professional education.
This indicates that we don’t need a criminal statute to eradicate child marriages. We need to improve the socio-economic conditions of the marginalised communities to prevent child marriage. This is what I believe in, and this is what several other feminists also believe in.
TL: Do you therefore think that this is a problem that cannot be solved merely legislatively?
A: Yes. Absolutely. What you need is that the Health Department, the Finance Department and the Education Department have to come on a common platform in every state, work together, mark the areas which are under-developed and concentrate on those areas, and see to it that there is no malnutrition, and that there is provision for a school in every village in the local language. All these measures need the allocation of money. Passing legislation does not cost the government anything. Improving and developing particular areas costs a lot of money. Creating the infrastructure costs a lot of money. The government thinks that just by enacting a statute, automatically things will change and you can say that we have done it for empowerment of women. In fact, women will be disempowered by this.
TL: The expert panel, which recommended the increase in minimum marital age of women, has stated on record that its recommendations are based on consultations with 16 universities and 15 NGOs. The main feedback they apparently received was that the marital age should be increased to as much as 25 years, which the panel moderated to 21 years. Why do you think so many people advocated to the panel to increase the marital age for women?
A: As soon as the task force was constituted, several NGOs came together and spoke to 2,500 young girls, who highlighted the problems this would cause. So if there is one particular view, there is also another counter view on this.
Now if you speak to students at universities who are young and who do not understand the several layers of subjugation of women; on the surface, it sounds good. Even some of my friends who are academics, when I asked them about their opinion on this, responded that this is a really good move, since girl children would be allowed to study till the age of 21. Only three or four feminists responded that this is a very bad move and it should be opposed. Because they are the people who are aware of the layers of subjugation that girls from marginalized communities are subjected to. So, just taking opinions of people of a particular social status, who come from privileged sections, does not count because they are not able to comprehend the poverty and marginalisation that these communities face. You’re making a law not only for these people, but for the entire population. So, views of every section should be included which according to me was not done.
I have another concern – suppose a girl falls in love with a boy of another community or a lower caste. The parents can file a police complaint against the girl and the boy. It’s happening today also. Even when the girl is above 18, parents project her as less than 18, and they seek police help to stop the relationship. But if the girl is pregnant, and if she refuses to go back to her parental home, then she is sent to a government shelter home. She lives there, and delivers her child there, and undergoes great hardships so that she can marry the person of her choice when she’s 18. Now imagine a situation where she would have to be kept in the shelter home till she is 21 years. We saw what happened in the Hadiya case, in which the girl was 26. She chose to convert and marry a man from the Muslim community. The [Kerala] High Court annulled the marriage at the request of the father. This is the kind of patriarchal control where the paternal power and the State power collude. So now, this particular kind of control will be exerted till the girl is 21 years. That is my concern.
At MAJLIS, we have a programme for supporting victims of rape and sexual assault, as well as POCSO [Protection of Children from Sexual Offences Act] cases, where we see girls of 13, 14, 15 years pregnant. They have eloped, or they have a boyfriend. The parents file a missing complaint, and they are traced and brought back. Sometimes, the girls are able to negotiate with their parents and insist on getting married to their boyfriend.
But a case under POCSO is filed because consent by a person under 18 is not a valid consent. This was bad enough. Now if we increase the age of girls for marriage to 21, imagine what is going to happen to them and their right to marry the person of their choice. Here I’m talking about a different class of people; these are lower or middle class families where girls do not have the freedom to fall in love and marry the person of their choice.
Amid heightened communal tensions in society, one can imagine what kind of control the parents will exert over their daughter if she falls in love with a boy from another community or from a lower class.
Internationally, the age of marriage is on the lower side everywhere. Only in India, we are increasing to 21 on the ground of empowering women and girls. But this is totally counter-productive.
TL: Some proponents of this step argue that increasing the marital age of women to 21 years is a step towards gender neutrality because the minimum age for marriage for men is already 21 years. It is also argued that this would lead to a reduction in the number of child marriages because as you pointed out, in 1978, the minimum marital age for women was increased from 15 to 18 years; subsequently, the number of child marriages has reduced from 40-50 per cent to 23 per cent. How would you respond to such arguments?
A: If we see the general economic standard of the country, and particularly the post-90s economic boom, there are a lot of communities who were below the poverty line that are today above the poverty line. They have access to education, among other things. It is not because of the statute that came about but because of the improvement in their economic standard. If the same is done for economically backward communities, their marital age will also go up.
Just taking opinions of people of a particular social status, who come from privileged sections, does not count because they are not able to comprehend the poverty and marginalisation that these communities face. You’re making a law not only for these people, but for the entire population.
So if the girl is studying and finished the 12th standard, then she has the choice for higher studies and she enrols there, or she enrols in some skill training, or she is able to get employed and support the family, she becomes an asset. Then, her parents won’t force her to marry when she is 18. They will automatically wait till she becomes independent. So if you create such conditions, the age of marriage will rise. It won’t rise by enacting a statute. First of all, build schools which provide quality education in every village. This is very basic. For instance, in Maharashtra, there are several backward districts, villages which don’t have any schools, particularly in tribal areas such as Melghat or Gadchiroli. If you visit these areas, you will notice the grim situation prevailing there. Then imagine what is happening in other states, where the level of poverty and backwardness is even starker. So first create the necessary conditions for improving the health and nutrition, and education standards of girl children in these areas.
Also equally important – provide safety to women. There’s a constant fear that the girl will be sexually assaulted when travelling by bus to a distant village. Several such cases come to light. There are instances where on their way to schools girls are not only sexually assaulted but there is also a risk to their lives.
Parents are very insecure about sending their grown up daughters to a distant village or the nearby town. So ensure that the school is available in the vicinity so that students can either walk, cycle or provide free transportation.
In fact, the report of the task force has recommended that these measures are essential before enacting a law increasing the age of marriage for girls. The committee’s recommendation was not that you pass the law first and then everything else will follow. I’ve seen interviews and recommendations by the committee members.
TL: According to you, what should be the minimum marital age for men and women in the country?
A: There are people who are arguing that it should be the same, and it should be brought down to 18.
TL: Yes, that is what the Law Commission of India had also recommended in 2018.
A: I’m not so sure about that because there are different responsibilities for girls and boys upon marriage. For instance, if the girl has problems, and she goes to courts for maintenance. Now, in India, marriage doesn’t happen between individuals; marriage happens between families, and the girl goes to her in-laws’ house, where she is provided for. But the law doesn’t recognize this. The law recognizes the marriage contract as one between the man and the woman, and there is no responsibility on the joint family to provide for the girl.
If there is violence, or the man throws the woman out, and she has had children in the meantime, she has to go to court and ask for maintenance. An 18 or 19 year old boy who does not earn, can easily evade his responsibility of maintaining his wife and child by stating that he doesn’t have money because he doesn’t earn and that he is still studying. So, while the law imposes a responsibility of paying maintenance to the wife and child, the wife’s claim can easily be defeated. So even while the boy is being supported by his parents, the law does not permit the wife to claim maintenance from her in-laws and she will be left high and dry.
According to me, the boy should be capable of supporting the wife at the time of marriage and this cannot happen when he is 18.
While we aspire for equality, there is no equality between men and women in society. We are an unequal society where the roles and responsibilities of husband and wife vary a great deal. So I don’t endorse using a gender neutral term ‘spouse’ because the responsibilities and liabilities within marriage are not on an equal footing in marriage. The man is supposed to economically support the wife and children. When he is not able to fulfil that role, what will happen to his wife? If she is thrown out of the house, and she comes back to her native family, then where is her security?
TL: Are you then in favour of retaining the status quo, that is, 18 years for women and 21 years for men?
A: Yes, I would say that, though it may sound un-feminist, that you’re not advocating equality. But I’m really not for equality. For instance, we have the [Protection of Women from] Domestic Violence Act – it’s only for women; there’s no equality there. We have the provision of maintenance under Section 125 of the CrPC [Criminal Procedure Code] that is only for women. So there are several provisions which are only for women, for protecting them and ensuring their economic rights. We have the Dowry Prohibition Act or provisions such as ‘cruelty to wives’ under Section 498A of IPC [Indian Penal Code] which recognise the unequal position of women and their need for greater protection. So when someone argues that there should be equality between men and women within marriage, I don’t think they have defended women in matrimonial litigation where this becomes very glaring.
One aspires for equality, but at this moment there is no equality. So I feel that we have to see the roles and responsibilities in marriage, and the age should coincide with that, and not merely based on equality.
For instance, under matrimonial laws, and Hindu laws in particular, the grounds for divorce are cruelty, desertion, adultery, etc. But they operate very differently on the ground. For instance, a man can state that his wife didn’t make tea when he returned from work or she is not wearing a mangalsutra, she refuses to touch the feet of his parents and is thus insulting them or that she is insisting on breaking away from the joint family and that all this constitutes cruelty to him.
For the woman – he is not paying maintenance to me, he is being physically violent, he has thrown me out of the home, he is denying access to my children, and so on – these constitute acts of cruelty. How can you compare these on the same plank? One is a survival issue, and one is based on conservative cultural traditions. Touching the feet or providing meals on time, in which he doesn’t partake at all, and it becomes her responsibility. When you study reported judgements, one can clearly see how differently the notion of ‘cruelty’ plays out under the matrimonial laws.
Similarly, for desertion, many times she goes to the natal family for delivery, he doesn’t accept her back, and then he files a case for desertion. It took courts a long time to understand the notion of ‘constructive desertion’ – that even though she is the one who has left the home, she is not guilty of desertion, and that desertion actually operates on her because the husband has denied her entry into the matrimonial home.
These things don’t happen to a husband; he is stationary at his home. These are socio-cultural issues, and we need to take care of them, so that women become empowered, and then we can think of laws that are equal and a society that is equal.
TL: Some people might respond to that by saying that you’re advocating for laws that continue to treat women as ‘victims’.
A: I’m not the only one. Everyone’s doing it. All who are working for women are doing it. That is what the Domestic Violence Act does!
It today women are the victims, I think we need to have legal remedies to address this victimisation of women. I don’t think this is ‘anti equality’. Take dowry, for instance. We have an exclusive law for dowry harassment. We have a specific provision under Section 304B [of the IPC] where a woman dies within seven years of marriage, there is a presumption that there was a dowry demand. Then, we have the Domestic Violence Act that everyone uses. Rather than going to family courts and asking for remedies under matrimonial laws, this is an easier way: to approach the Magistrate’s court, and ask for remedies under the Domestic Violence Act. So we have several such laws that protect women because women are the victims today. There is a whole group which says that the Domestic Violence Act should be applicable to men as well, but I don’t think that the Parliament has accepted it. Even the National Commission for Women has not accepted it.
In fact these are all recent developments in matrimonial law. If we examine the Hindu Marriage Act, enacted in 1955, it was based on the premise of equality. It does not even have the concept of a right of residence in the matrimonial home. This awareness of protecting women has come more recently. These protective measures are more recent after women’s groups started working on issues concerning violence against women.
TL: What other unintended legal and social consequences do you foresee if the bill is enacted in the Parliament?
While we aspire for equality, there is no equality between men and women in society. We are an unequal society where the roles and responsibilities of husband and wife vary a great deal.
A: I am very concerned because it will put marginalised families at risk. They are not articulate; they are not following this debate. They are the silent majority in the country. They also don’t see the implications for them. But when the law begins to unfold, you will see that it has not necessarily helped in increasing the marriage age, but in fact, it has put more families at risk. Also, it can be misused to the extent that to settle private disputes and settle scores, someone may file a case against a family at a police station that they’ve got their daughter married before 21, and the family doesn’t know what struck them, and what wrong they have done.
Unless there is a lot of awareness raising and precautionary measures built into this legislation, the law won’t work and expose poor families to untold hardships.