Article 21 of the Indian Constitution[1] grants the right to marry a person of their own choice under the ‘Right to Life’. Marriages in India are of great significance, and are given great attention. The Supreme Court in a 2018 judgement, ruled this itself that the Article 21 of the Indian Constitution includes this right to marriage. It was declared in the judgement that this right could not be restricted unless it was done by a law that was legally as well as through procedure equitable and just for both the parties. Yet, many individuals have had difficulty in enjoying their right to an unrestricted marriage due to society and its prevailing laws. These rules and opinions of people make it difficult for individuals, particularly women, to make their decisions regarding their own partner, forming their own opinions about their future, about their education and even choosing the age they want to get married at etc.
Since then, minimum age for marriage has been evolving. The earliest marriageable ages for men and women were 18 and 14 years, respectively. But following the country’s independence, along with many other reforms, the Child Marriage Restraint Act (CMRA) [2] which was amended in 1978, raised the legal marriageable age for both men and women to 21 and 18 years of age, respectively. Reduced gender disparities, gender discrimination, and child marriages were the primary drivers of this transformation. Although this transformation occurred 45 years ago, many regions of the nation still use these outdated customs today.[3]
So, in December 2021, the Indian government put forward the Prohibition of Child Marriage (Amendment) Bill, 2021, in order to increase this marriageable age of women to 21 years bringing it to be at par with men. This amendment bill will introduce a consistent law applicable to all Indian religions and cultures while revising their own current personal laws. It is a fact that any change in significant laws in the country will give rise to a debate on the rights of the people involved and so is the case with this amendment bill. This change has generated a debate between the fundamental rights of the people and the social good enforced by law.
CURRENT MINIMUM MARRIAGEABLE AGE IN INDIA
Hindu marriages are governed by the Hindu Marriage Act of 1955 [4], which also includes provisions for Buddhist, Jain, Sikh, and other communities. It establishes certain requirements that must be met before a marriage can be solemnised as a legal and a valid one. The marriageable age is often regarded as the minimum age at which a person is legally permitted to marry another person while taking into account the permissions of their parents, religion, and other factors.
Various cultures and faiths with an established presence in the country may have their own varying marriageable ages. Clause (iii) of Section 5 of the act mentioned above sets the legal minimum marriageable age limit as 21 and 18 years for a man and a women respectively. Many religious groups, including Hindus, Buddhists, Jain, Sikhs, and others, are covered in this law. A minor who has reached puberty may marry as stated by the Islamic law, and their marriage would be recognised as a lawful one. The age at which men and women can get married in other communities, such as Scheduled Tribes, Scheduled Castes, and Other Backward Classes (OBC), has not varied significantly throughout the years. However, compared to the rest of society, the women in these groups prefer to get married earlier.
The National Family Health Survey (NFHS) found that a woman’s age at marriage may differ based on her state, educational level, cultural traditions, and financial position as well. Women in the Northern and Southern parts of the country are more likely to marry at a later stage in life compared to those in the Central and Eastern regions of the country, where marriage rates are typically lower, according to the 2015-2016 survey. These trends must alter because every girl has the right to wed at the time of her choosing and should not be forced to deal with problems like inadequate education, a lack of financial independence, domestic violence, pressure-related mental health issues, etc. after being forced into an early marriage.
PROHIBITION OF CHILD MARRIAGE AMENDMENT BILL, 2021
The Prohibition of Child Marriage Amendment Bill[5] raises the minimum marriageable age from 18 to 21 years old, amending the Prohibition of Child Marriage Act of 2006 [6]. This is done in order to advance gender equality and lessen the discrimination that is currently prevalent in the country. According to the legislation, anyone whose marriage is held before them reaching this minimum age limit may request an annulment of marriage within two years of attaining the legal age. The bill states that this will now be adjusted it to five years following them attaining majority. While, the age limit for females to attain majority under the Majority Act of 1875 remains 18 years old.
A task force was created to look into various factors impacting the rise in the marriageable age in relation to pregnancy and child marriages prior to the passage of this bill into the Parliament. The task force concluded that in order to advance more gender equality as well as empowering girls to finish their higher education without being compelled to stop in their careers, it is important to raise the legal marriageable age for women. This choice was taken following discussions with the pertinent parties [7]. The task force further recommended a time frame for the reform’s implementation after finding that the marriage age should be increased. There must be some time given between the announcement of the modification and its actual execution because it could not be put into effect instantaneously. Due to this gap, people will be better equipped to deal with this important shift in the legislation. The task force suggested two options for the implementation date, either it could be done two years after the notice of the change, or to keep an implementation schedule and raise the marriage age one year at a time in the following years. The administration finally decided that these adjustments should be put into effect two years after the bill was introduced in the parliament and it had successfully passed that body.
A PROGRESSIVE STEP TOWARDS POSITIVE CHANGE IN THE SOCIETY
In the twenty-first century, society operates like a paternalistic framework, where a woman is reprimanded for defying a man’s choice in her life and is expected to accept it as final. Whilst being compelled to spend their whole lives with a person they have never met, young ladies are forced to abandon their homes. This amendment bill will serve as a stepping stone towards enacting the fundamental reform needed in society so that women can complete their education, become aware of their rights, and achieve independence before being treated in this manner. This little adjustment in the legislation is more likely to result in a larger shift in how society views individuals, which will eventually lead to a more progressive society in which women are seen on equal footing with men and are not devalued. Equal opportunities for higher education, employment, the right to choose any course of action, and financial independence will be available to women, all of which support profitable growth.
It is also crucial to defend women’s rights against the pervasive practise of underage marriage. The amendment bill is going to be a crucial step in bringing about this future change in the social structures that are currently in place. This will result in modifications to the legal systems, giving rise to a complete framework built on defending the fundamental liberties of women.[8] The move will also make it possible for women to enrol, and many of them will be able to finish their higher education, which will boost social indices for gender. In addition, the majority of those who benefit from government programmes like the Pradhan Mantri Jan Dhan Yojana and UJJAWALA programmes are women, which has contributed to their empowerment. Therefore, further programmes like these will serve to improve the status of these women after this amendment law.
On the surface, the country’s decision to raise women’s legal marriageable age may seem as a measure that exclusively affects women, but it will additionally have an equal impact on men’s life. If a man marries a woman that’s similar in age as them and similarly independent as he is, they will both benefit economically and socially. Women who are 18 years old often experience strong familial pressure and threats, which pushes them into early marriages where they become totally reliant on their husbands.[9] However, raising the marriageable age to 21 will allow them to be more financially, physically, and psychologically independent than their husbands, which will lessen the stress on the husband to be the family’s only provider. In addition, adolescent pregnancies frequently come with a high risk of complications during pregnancy and delivery, endangering both the mother and the foetus. Raising the marriage age will therefore help reduce maternal mortality and enhance the internal health of women.
The empowerment of women is essential. The best course of action is to provide women more opportunity to enter the workforce. They could be enabled to work before getting married with an increase in the marriageable age. Therefore it will be simpler for them to seek employment after being married. The fertility rate will decline as a result of this. Additionally, it will offer them more negotiating ability to address societal ills like dowries. So, whenever a woman enters the workforce, it will have an impact on the family’s relationship, mental health, and financial stability.
WHY THE CHANGE IN THE LAW COULD BE A BAD MOVE
Some people may believe that the government’s decision to examine raising the legal marriage age for women may end badly. Although this shift may appear to be a step in the right direction on the surface, a closer examination reveals that it may instead demotivate Indian women rather than empowering them. They claim that the government has rushed the measure into existence without consulting any relevant parties. They believe that the law was an example of the government’s evil intentions. Girls are forced to leave school at a young age for a variety of reasons, including sexual harassment, inadequate education, and most crucially, familial pressure, which is what causes their early marriages. [10] However, by raising the legal marriage age, the young ladies who have been subjected to harassment at home would be obligated to stay there for an additional three years in order to reach the age requirement for marriage. While the government in this situation might shift their attention towards addressing this systemic gap for the girls who are skipping out on school.
There are some social conventions in this traditional culture that no reform in the law can alter. One such belief is that early weddings of young women will be more advantageous to the women’s families since this would lessen the financial strain on the parents (families that consider daughters as a burden) and the costs of dowry at an early age. Some families believe that investing in a girl’s education would be a waste of money and that instead, she should be married off. However, the government has to realise that changing the legislation won’t make these societal norms and beliefs go away. Despite the fact that child weddings have been banned in several other ways since the 1900s and have mostly remained an unresolved problem until 2005, early marriages nonetheless manage to find their way into the system.
Early marriage most frequently happens in rural, lower-income families with limited opportunities for medical services and education. Compared with their urban counterparts, which are often better affluent and are married at older ages, these women may be more undernourished. So, it can be said that for this group of women age is not the primary factor contributing to the poor indicators of health but rather it is their social status and access to opportunities for improvement. Young women could find it more challenging to marry the person of their choice, which might further constrain them and further increase the parental control over the private lives of such young women.
CONCLUSION
In addition to helping the country’s socio-economic problems, the government took a noteworthy decision by increasing the minimum age for a women to be married. Still, as we can see from a previous example, enacting laws by themselves is insufficient to effect change. The end objective is to educate young girls about the negative effects of child marriage, enable them to pursue an education, and provide them financial independence. To ensure that the girl’s right to live the life of her choosing is respected and safeguarded, the government should subsidise healthcare and educational institutions. Rather than simply passing regulations and hoping for a shift in the mindset of people, the government ought to establish a ground-level tool to promote consciousness and implement this shift in policy rigorously. This will alter society’s cognitive ability more effectively than laws ever will. In addition to raising consciousness about reproductive rights and the fact that no one may compel women to get married, have children, have abortions, or any other reproductive choice, it is essential to equip all women with suitable and readily available medical services.
[1] Article 21: Protection of Life and Personal Liberty Constitution of India, https://www.constitutionofindia.net/articles/article-21-protection-of-life-and-personal-liberty/ (last visited May 21, 2023)
[2] The child marriage restraint act, 1929 19 of 1929 Ministry of Women & Child Development Home, https://wcd.nic.in/child-marriage-restraint-act-1929-19-1929 (last visited May 21, 2023)
[3] Marriage practices: India: 19th and early 20th Century, Encyclopaedia of Women & Islamic Cultures
[4] Hindu marriage act, 1955 India Code, https://www.indiacode.nic.in/handle/123456789/1560?sam_handle=123456789%2F1362 (last visited May 21, 2023)
[5] Vrinda Bhardwaj & Abhishek Yadav, Analyzing the prohibition of The child marriage (amendment) bill, 2021, SSRN Electronic Journal (2022)
[6] Kalyani Roy, The prohibition of child marriage act, 2006 ., 6 International Journal of Social Science and Economic Research , 1756–1768 (2021)
[7] Forbes, G.H. (1979) ‘Women and modernity: The issue of Child marriage in India’, Women’s Studies International Quarterly, 2(4), pp. 407–419. doi:10.1016/s0148-0685(79)90455-x.
[8] Narumon Saardchom & Jean Lemaire, Causes of increasing ages at marriage: An international regression study, 37 Marriage & Family Review , 73–97 (2005)
[9] Robert Jensen & Rebecca Thornton, Early female marriage in the developing world, 11 Gender & Development , 9–19 (2003)
[10] Ending child marriages: Raising the marriage age for women is not enough Publications Repository (PURE), https://pure.jgu.edu.in/id/eprint/3762/ (last visited May 21, 2023)
Author: Vvanshika Singhal
Juris Centre 