Authors: Shaijal Shekhar and Yashwant Singh Yadav, III year of B.A., LL.B.(Hons.) from Faculty of Law, Aligarh Muslim University
The age of marriage has always been in debate in India from the period where there was no age limit for marriage till today where the High-Level Committee has been set up by the Ministry of women and Child Development to revise the marriage age for women from 18 years to 21 years. The woman has always been seen as a gateway to new family roles and the likelihood of producing offspring. This stereotype has been deeply rooted till now and being supported implicitly by some of our legal provisions such as the legal age of marriage being 18. So, this is the appropriate time to discuss and rethink about revising the age of marriage where women are now leaders, scientists, holding higher executive and judicial posts, Navy and Air force taking women in combat and many more instances of women empowerment.
EVOLUTION OF AGE OF MARRIAGE IN INDIA
In earlier times, Child marriage was very prevalent in India and is still prevalent in some parts of the country. Earlier, there was no age limit prescribed for marriages of girls and boys.
For the first time when the British Government codified the laws in 1860, Indian Penal Code made sexual intercourse with a girl below the age of 10 years a criminal offence. In 1891, the Age of Consent Act was passed that changed the age for sexual intercourse for girls, whether married or unmarried from 10 to12 years and further in 1927, by the Age of consent bill marriage with a girl under 12 years of age was made invalid. Later in 1929, The Child Marriage Restraint Act also known as SARDA ACT made 14 years as the minimum age of marriage for girls.
The Indian government after independence passed its first legislation regarding the age of marriage in 1954 that set the age of marriage for women as 18 years. Eventually, in 1978, SARDA ACTwas amended and the age of marriage was changed from 14 to 18 years for girls. The latest act regarding the age of marriage is The Prohibition of Child Marriage Act, which also mentions 18 years as the minimum age of marriage for women.
A particular age of marriage has been discussed in all the personal laws of different religions. According to Section 5 Cl. (iii) of The Hindu Marriage Act, 1955, 18 years is the minimum marrying age for the women, According to Muslim Personal Law there is no fixed age of marriage, any person who has attained the age of puberty may enter into a contract of marriage. It must be noted that the age of marriage is different from the age of majority which is the same for both male and female i.e., 18 years according to the Indian Majority Act, 1875.
REASONS WHY AGE OF MARRIAGE SHOULD BE REVISED
1. SOCIAL AND HEALTH REASONS
a) Gender Inequality
There is no rationale behind having a different age of marriage for men and women. This codification of law is just based on different customs and religious practices which gives birth to gender inequality. Looking at Law Commission Consultation Paper or different international conventions such as CEDAW[i], they have talked about uniformity in the age of marriage for both men and women. Although the international standard set for the age of marriage is 18 and the gender neutrality aspect can also be dealt with by reducing the age of marriage for boys but this idea doesn’t appear to be a good reform. Countless stereotypes have been in practice and they need to be dealt with consciously, such as it has been a practice that boys should be older, more educated and have higher income as compared to girls. The Law Commission consultation paper[ii] has also talked about the different legal age of marriage for man and woman and says that it“contributes to the stereotype that wives must be younger than their husbands.” It is also said that girls hit puberty earlier than boys so they are more mature to boys in the same age. But this is not so as puberty does not define maturity and steps have been taken in this direction by CEDAW which calls for the “abolition of laws which assume that, the rate of woman physical and intellectual growth is different from man.”
b) Risk of Early Pregnancy
This reform may be brought to reduce early pregnancies among women. As teenage pregnancies are at higher risk as compared to pregnancies after 20 and it also leads to an increase in Maternal Mortality Rate and Child Mortality Rate. This claim has been supported by the following reports and interview:
A study by international Food Policy Research Institute (IFPRI)[iii] a global think tank in 2019 found that “Compared to adult mothers, teenage mothers were shorter, more likely to be underweight and anaemic, less likely to access health services and had poorer complementary feeding practices. They also had lower education, less bargaining power and lived-in poorer households with poorer sanitation.” The institution further observed that as compared to adult mothers, stunting and underweight prevalence were 10 percent higher in the adolescent mothers. The study also gave importance to another factor, like poverty and less education and awareness among these teenage mothers, which had the most important link with a child’s height and weight measurements. It recommended that a promising approach to improve nutrition in mother and child can be by increasing the age of marriage for the women and increase in age at first birth of the child.
As per the National Family Health Survey (NFHS)-4[iv], 27 percent of girls get married before they reach the age 18 and 31 percent of these married Indian women give birth by the age of 18.
A UNICEF report[v] suggests that each year, at least 1.5 million girls under the age of 18 get married in India and that makes India home to the largest number of child brides in the world accounting nearly one-third of the global total. Nearly 16 percent adolescent girls aged 15-19 are currently married.
UNICEF’s State of the World’s Children 2015 report[vi] noted that nearly 47 percent of girls get married before 18 years of age. According to the report, the women who get married as an adolescent have contributed to the country’s high infant and maternal mortality rates, and some observers have a suspicion that due to the early motherhood there is the death of nearly 6,000 adolescent mothers each year. A national family health survey showed that between the ages of 15 and 19, one out of six girls had become pregnant at least once.
A report on “Child marriage, adolescent pregnancy and school dropout in South Asia”, by UNICEF[vii] states that levels of adolescent pregnancy in South Asia were high, primarily due to early marriage and pressure to conceive quickly after marriage. By the age of 18, 22 percent of girls in India had at least one child.
With an Interview with The New Indian Express, Dr J Kumutha[viii], Expert Advisor for Child Health, Tamil Nadu says, “Morbidity in both mother and the baby, babies with low birth weight and preterm labour are some of the issues in early pregnancy. When women get married at the age of 18 years, their body is not prepared for childbirth. Birth canal formation is completed after 18 years. In that adolescent age, girls are not mentally prepared to give birth to a child.”
Also, Dr Anu Vij[ix], an obstetrician and gynaecologist in Chennai, with over 25 years of experience in these fields, in an interview with Times of India, presents a biological reason for why the age of marriage should be increased. “The reproductive organs attain optimum size and function by the age of 21 years,” she says.
c) Loss of Education
Early marriage of girls at the age of 18 tends to drop out of girls from education as after marriage a girl has the new role of wife or mother, often having expectations that she would take care of the home, child and of the extended family. And the chances are, less that these women would return back to school or colleges.
2. LEGAL REASON
a) Violation of Fundamental Rights
As having different legal age prescribed for marriage provide the grounds of discrimination and that eventually disregard the fundamental rights given in Article 14, which talks about the right to equality and 21, which talks about the right to live with dignity.
Also, Supreme Court of India in National Legal Services Authority of India v Union of India,1863 AIR (2014) in recognizing transgenders as the third gender, observed that “justice is delivered with the assumption that humans have equal value and should, therefore, be treated as equal, as well as by equal laws.” Also, in Joseph Shine v. Union of India, SC 1676 (2018) the Supreme Court while decriminalizing adultery said that “a law that treats women differently based on gender stereotypes is an affront to women’s dignity.”
This reform may be helpful in achieving the vision of ‘Ministry of Women and Child Development’ which talks about empowering women, creating an environment free from discrimination and well-nurtured children having opportunities of full growth and development. It also seems necessary in order to achieve gender neutrality and decrease maternal mortality rate and child mortality rate. The above-stated reasons indicate that there is an immediate need to increase the legal age of marriage for girls from 18 to 21. Hence the government should focus on this matter and bring an amendment as soon as possible revising the age of marriage for the girls. The outcomes of the reform can be easily achieved by a legal order following the due process. Several countries like China, Hongkong, Indonesia and many more have already come up with such reforms, so now it's time for India to come forward.
[i]Convention on the Elimination of All Forms of Discrimination Against the Women.
[ii] Reform of Family Law, Consultation Paper by Law Commission of India, 23 (2018).
[iii] Phuong Hong Nguyen & Samuel Scott, Social, biological, and programmatic factors linking adolescent pregnancy and early childhood undernutrition: a path analysis of India’s 2016 National Family and Health Survey, The Lancet Child Adolescent Health 1 (May 15, 2019).
[iv] National Family Health Survey (NFHS-4), 2015-16: India, Mumbai: IIPS, 165 (2017).
[v]End child marriage, UNICEF India ( https://www.unicef.org/india/what-we-do/end-child-marriage
[vi] Marriage Laws Around the World, Department of State Country Reports on Human Rights Practices for 2015, PEWResearchCentre(Sep24,2020,3:32P.M)https://assets.pewresearch.org/wpcontent/uploads/sites/12/2016/09/FT_Marriage_Age_Appendix_2016_09_08.pdf
[vii]Child marriage, adolescent pregnancy and school dropout in South Asia, https://www.unicef.org/rosa/media/3051/file,(2019).
[viii] B Anbuselvan, Need to increase women’s wedding age: Activists, politicians welcome Centre’s decision of reconsidering minimum marriage age, The New Indian Express, Aug 17, 2020.
[ix]Kalpana Sharma, why we need to revise the marital age for women https://m.timesofindia.com/life-style/parenting/getting-pregnant/why-we-need-to-revise-the-marital-age-for-women/articleshow/76439521.cms, (2020).