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MARRY NOW OR MARRY LATER? : DILEMMA TO REVISE LEGAL MARRIAGEABLE AGE FOR WOMEN

Author: Dhwani Vora, 4th year BLS LLB student from Pravin Gandhi College of Law, Mumbai.



Introduction

Dr. B.R Ambedkar, the father of Indian Constitution emphasized, “I measure the progress of a community by the degree of progress which women have achieved”. India is trying to reform its image from being a patriarchal society to a society where every individual stands at par with each other. To bring this principle to life, our Constitution envisages under Article 14 the right to equality[i]. Even after 73 years of Independence, we are still on the path to achieve this deeply rooted goal. To bring about reform for women in our backward society, it takes a great amount of courage, perseverance and determination. Today when any policy, law or amendment for a female is brought into the picture, it is of utmost importance to realize that change will affect the 48.03% [ii] population of our country. So when our Finance minister, Mrs. Nirmala Sitharaman during her 2020 Annual Budget speech proposed to increase the age of marriage from 18 years to 21 years for women by setting up a “Task Force” to provide recommendations, it was not well received by most of the citizens. Prime Minister, Narendra Modi too pressed on the idea to revise the legal age from 18 to 21 years in his 73rd Independence Day speech at Red Fort. However, this idea is heavily debated even today and plenty of organizations, scholars and policymakers are struggling to make sense of this decision of the Government as to whether it is progressive or regressive.

Evolution of age of consent and marriage

In 1884, Rukhmabai was the first Indian female who refused to cohabit with her husband whom she married at the age of 11. She was married off as a child, without her consent. She fought a long legal battle until her petition reached Queen Victoria who later intervened and annulled her marriage. After many controversies, Age of Consent Act was passed in 1891 rising age to consent for sex from 10 to 12 years. Later Child Marriage Restraint Act of 1929 (“Sarda Act”) rose minimum legal age to marry, 14 years for girls and 18 years for boys. Today after a few amendments we have under the Prohibition of Child Marriage Act, 2006 18 years for girls and 21 years for boys.

The Recommendations and Motto of the Task Force

Keeping up with this evolving nature and as stated by our Finance Minister to increase the age of marriage from 18 to 21 years for women, a “Task Force” of ten members headed by Ms. Jaya Jaitly was set up by Ministry of Women and Child Development to examine the correlation of age of marriage and motherhood by key parameters of health, medical well-being and nutritional status of the mother and infant child, Infant Mortality Rate, Maternal Mortality Rate and other related issues. They also aim to increase higher education among women and amend existing laws with expert opinion.

The Task Force will be provided secretarial assistance by the NITI Aayog and it was to submit its report by 31st July 2020. [iii]

The rationale of the Task Force-

The “Task Force” aims to reduce maternal deaths which are largely preventable[iv] and the following reasoning substantiate their motto-


· Uniform legal age for men and women- The National Human Rights Commission in its report after much research and deliberation recommended uniform age for both men and women.[v] Even the Law Commission in a consultative paper on Family Law, 2018 suggested standardizing legal age to marry across all religion.[vi]


· Health problems faced by infants- According to PubMed Central[vii], when young mothers give birth compared to older women, it leads to health complications and often the death of infants. UNICEF has also raised concern that India has the highest mortality rate for children aged below five years old. It alone accounts for one-fifth of under-five deaths worldwide, with 2.1 million deaths in 2006.[viii]


· The mental health of women and nutritional status of infants- Women who are married off early lack proper education, access to health care facilities, skilled child delivery and proper vaccinations, as observed by UNICEF [ix]. This takes a toll not only physically but they are prone to depression, anxiety and low self-esteem. It is a proven fact that women who get pregnant at a young age have an increased chance of contracting ovarian cancer. A study conducted by Indian Food Policy Research Institute[x] and The Lancet Child And Adolescent Health[xi], published that children born to women between age 15 to 19 years were 5% more likely to be stunned than children born to women between the age of 20 to 24 years and 11% more stunned than children born to adult women. These children are victims of malnourishment, weak muscles and permanent health complications.

Contradicting Views to the Task Force

· Amend “Prohibition of Child Marriage Act, 2006”- According to Independent Thought V. UOI[xii], Supreme Court held that sexual intercourse with a minor wife aged between 15 and 18 years amounts to rape and no child below the age of 18 can give consent expressed or implied. The priority of the government should be to amend and synchronize the said Act with the judgement instead of increasing the age to 21 years. The 2006 Act is grossly misused by parents to take control of their daughter if she decides to elope and file false criminal complaints against the boy.


· Focus on eradicating child marriage- Instead of formulating a new law, the government must take measures to see to it that prevailing laws are followed. The National Family Health Survey showed that 26.8% of women between ages 20-24 are married before the age of 18[xiii]. Hence changing the legal age to 21 years will only superficially solve the problem. To bring about real changes, the government must make existing laws and punishments rigid.


· Misuse of law and ignorance of women’s choice- Irrespective the change in law, few sections of our society will continue to either coerce or emotionally manipulate the girls to get married. One of the many cases was Shafin Jahan v. Ashokan K.M[xiv] popularly known as “Hadiya Case” where irrespective of her age and consent, her parents intervened and tried to annul her marriage. Here we see that a girl has minimum to zero per cent say in her own life decisions and she is often rendered helpless.


· Increase in female foeticide- Often the backward and poor sections of our society consider a daughter as a liability. Parent’s burden increases with the increase in age of marriage. They believe in getting her married as soon as possible to cut down on finances and expenditure. It is one of the reasons why girls are not educated. So, if the legal age is increased from 18 to 21 years, there will be an increase in the number of female foeticides. The Ministry of Finance estimates that, as of 2014, 63 million women in India have gone missing due to both differential female survival and sex selection[xv].

Conclusion

John Kennedy once said, The great revolution in the history of man, past, present and future is the revolution of those determined to be free.”

Today, our focus should be on female empowerment rather than increasing their age of marriage. India being a progressive society needs to understand that 18 years is the minimum age of marriage and not mandatory age of marriage. If women are granted voting rights at 18 years then why should their right to marriage be denied? We need to direct our attention to the grass-root level problem rather than wasting resources on the superfluous problem. Some measures include-


· Amend “Right of Children to Free and Compulsory Education Act, 2009” to incorporate children from age 3 to 5 years and 15 to 18 years old. In this way, they will be more aware and these young adults will learn to become “self-sufficient”.


· Implementing schemes and policies for increasing the nutrition level of infants and young adults.


· Local government must bring about awareness through the newspaper, social media; organize talks in schools and workplace about “sex education” and “family planning”.


Over the past few centuries, India has taken positive steps towards gender equality and female empowerment. Save for establishing this Task Force, the government is diverting from the central issue of concern. Undoubtedly a shift from 18 years to 21 years for marriage is a big step; however, this concept is excellent in theory but practically futile. Some problems need a simple solution which no new law can resolve. Increasing the legal age to 21 years will only create more hurdles for women. To bring actual transformation, the government must consider these recommendations.

[i] INDIA CONST. art. 14, states “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

[ii] Population, female (% of total population)-India (2019), World Bank, (Oct.25, 2020, 6:00 PM), https://data.worldbank.org/indicator/SP.POP.TOTL.FE.ZS?locations=IN.

[iii] Task Force set up to examine matters pertaining to age of motherhood, imperatives of lowering MMR, improvement of nutritional levels and related issues, Ministry of Women and Child Development, (June. 6,2020, 11:53AM), https://pib.gov.in/PressReleasePage.aspx?PRID=1629832.

[iv] Maternal Health- UNICEF’s concerted action to increase access to quality maternal health services, UNICEF, (Oct. 25, 2020, 6:00 PM), https://www.unicef.org/india/what-we-do/maternal-health.

[v] Dr. AR. Lakshmanan, Proposal To Amend The Prohibition Of Child Marriage Act, 2006 And Other Allied Laws , Law Commission of India, (Feb. 5, 2008), http://lawcommissionofindia.nic.in/reports/report205.pdf.

[vi] Consultation Paper on Reform of Family Law, Law Commission of India, (Aug. 31, 2018), http://www.lawcommissionofindia.nic.in/reports/CPonReformFamilyLaw.pdf.

[vii] Anita Raj, The effect of maternal child marriage on morbidity and mortality of children under 5 in India: cross sectional study of a nationally representative sample, US National Library of Medicine National Institutes of Health, (Jan. 21, 2010),

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2809839/#:~:text=Early%20marriage%20of%20mothers%20was,%25%20CI%201.35%20to%201.78).

[viii] Patricia Moccia, The State Of Asia-Pacific’s Children 2008, UNICEF, (Sept. 25, 2020, 6:00 PM), https://www.unicef.org/sowc08/docs/SOAPC_2008_080408.pdf.

[ix] Id. at 4.

[x] Phuong Hong Nguyen, Social, biological, and programmatic factors linking adolescent pregnancy and early childhood under nutrition: a path analysis of India's 2016 National Family and Health Survey, International Food Policy Research Institute, (Sept. 25, 2020, 6:00 PM), https://www.ifpri.org/publication/social-biological-and-programmatic-factors-linking-adolescent-pregnancy-and-early.

[xi] Phuong Hong Nguyen, Social, biological, and programmatic factors linking adolescent pregnancy and early childhood under nutrition: a path analysis of India's 2016 National Family and Health Survey, Volume 3, Issue 7, P.463-473, (July.01, 2019), https://www.thelancet.com/journals/lanchi/article/PIIS2352-4642(19)30110-5/fulltext.

[xii] Independent Thought v. UOI, (2017) 10 SCC 800.

[xiii] Balram Paswan, National Family Health Survey (NFHS-4), 2015-16: India, Ministry of Health and Family Welfare, (Dec. 2017), https://dhsprogram.com/pubs/pdf/FR339/FR339.pdf.

[xiv] Shafin Jahan v. Ashokan K.M , (2018) 16 SCC 368.

[xv] Jonathan Abbamonte, 'Beti Bachao': Female foeticide unabated in India, Deccan Herald, (Aug.17, 2019, 7:59 IST),

https://www.deccanherald.com/opinion/main-article/beti-bachao-female-foeticide-unabated-in-india-754898.html.