In ancient India, it is ostensible to note the fact that young men and women had the liberty of choosing their life partners. However, during the ascent of the Middle Ages, and the emergence of a new type of governmental structure, a drastic change in the societal norms was observed, which made the societal opinion, more labyrinthine. The new political structure curbed/limited women’s rights and liberties. In the Middle Ages, the societal view towards young women was that the women were considered irresponsible and irrational in love, consequently convincing their parents to get them married when they were young. With time, there was another societal view regarding marriage. Girls of six to eight years began to get married, while the daughter remained with her parents until puberty. The reason was that the parents wanted to be ensured that the two families were compatible with each other and the same will help in improving the compatibility of a married couple right from a young age, thus resulting in the strengthening of their marital relationship. Consequently, it led to the regularization of child marriage in India.
The aspect of the governance of the age of the child for the marriage has been initiated and been prevalent right from the British Era. After the initiation of the Indian Penal Code in 1860, indulgence towards sexual intercourse with a girl under the age of ten was made a criminal offense, attracting certain penal implications. Also, it became common for Women’s rights advocates to pressurize the British government to pass the Age of Consent Bill in 1927, declaring a marriage of a girl under the age of 12 years as unlawful.
Proposed Bill for Change in the Age for Marriage
It has been made evident that there is going to be an amendment in the minimum age of marriage for women which is to be changed from 18 to 21 years. The union cabinet has given its assent on the same and now there are going to be certain amendments in the three laws namely, Hindu Marriage Act, 1955, Prohibition of Child Marriage Act, 2006, and Special Marriage Act, 1954. However, there are some technicalities in this aspect that one needs to know in order to clarify the doubt regarding the same.
In the year 1929, it was the first time when the age for women for marriage was decided. With the help and support of Ram Bilas Sarda, a private Bill was initiated, which later became a law named as Child Marriage Restraint Act, 1929. The Act as the name suggests was brought to check the marriage of the children and in that law, the age of the woman for marriage was determined as 14 years and 18 for men. Two years after 1929, in 1931, the rate of child marriage became ‘four times’. Finance Minister Nirmala Sitharaman, in February 2020 during the budget session announced a committee to be set up for pondering upon the matter regarding the minimum age of marriage for women. Consequentially, the Ministry of Women and Child Development on 4th June 2020 had assented to for the Constitution of a high-level committee for the special purpose of reviewing and making certain subtle changes in the legal age of marriage for women from 18 years to 21 years. It is intended to equalize the legal marriage age for girls and boys. The task force will investigate the situation and provide suggestions by July 31, 2020. The NITI Ayog will provide support to the task force. On 15th August 2020, PM Modi announced that the age of women will be increased from 18 to 21 years.
The aspect of the Uniform Civil Code is there in this matter and related to the same in certain aspects. We know that there is a civil procedure code in our country and the same governs all religions uniformly. But the problem is the personal law, for example, in the Hindu Marriage Act, if two Hindus marry each other, according to 1955, the age of a woman would be 18 and of a man would be 21 years. While in the Special Marriage Act, where there are two different communities, caste or religion, the ages are 18 years and 21 years. But according to the Mohammedan law, the age that has been defined for the girls as, the age of puberty, in the age of 14 years. If there will be a Uniform Civil Code, there will be the same age for the marriage. According to The Hindu Marriage Act of 1955, Section 5(iii) stipulates that women must be 18 years old and men must be 21 years old to marry. In Mohammedan Law, however, the age of marriage is established when the girl reaches puberty, which is at the age of 15 years. According to Muslim personal law, a marriage between a minor and an adult who has reached puberty is lawful.
The Proposition: Is It Necessary?
If it is deemed to be a good step that the age of the women is to be 21 years instead of 18 years, as same as men, then why there is a debate baulking the artless acceptance of the bill? If we take in at the Ministry of Women and Child Development report, of 2019 and 2020, we realize that among the marriages that occurred in those two years, 23 percent of the total marriages were child marriages. After the independence, in 1949, there was an amendment in the Sarda Act that the age of the girl for marriage is to be 15 years from 14 years. In 1978, there was also an amendment in which it was 18 years for girls and 21 years for boys. However, there are certain aspects which justify the proposition of the bill. We can infer that women will get the liberty to pursue their higher education and construing to the same, the societal pressure for the marriage of the girls at 18 years would get diluted to a large extent. This will help the women to attain their maturity before getting. It will also affect the Maternal Mortality Rate and will enhance the nutritional levels and other related issues. The bill regarding the revision of the minimum age for marriage of women will help in improving the aspect of standard of living. The reason is because the girls will indulge themselves in education creating a number of job opportunities.
But the problem was that, due to lack of awareness in the society, people started marrying their daughters at a very low age due to the verity that in the society, girls were seemed to be a burden on the house and the society. But in the aspect of boys, the scenario was less disturbing. In 2006, child marriage was declared a crime. And there was a penal implication of two years of imprisonment for the child marriage. If there was a child marriage at a time, the husband or the wife has to claim the nullity of the marriage within two years of attaining a majority in the court failing to which the marriage would be deemed to a valid marriage. Seeing this aspect from the eyes of gender equality, there was huge discrimination against the women in the same. To eradicate the problem, a committee was formed, headed by Jaya Jaitly. The committee came to its conclusion by submitting its report, asserting that population control is not the reason for the same but Maternal Mortality Rate and Infant Mortality Rate are the major issues to be tackled responsibly. For example, if a girl is of 18 years of age and she has not even graduated from college, she gives birth to a child. In this aspect, there is an imperilment to both, the child and the girl and this is the major cause of Infant Mortality Rate increase and increase in Maternal Mortality Rate.
What Is The Composition Of The Task Force?
The task force headed by Jaya Jaitly, former Samata Party President, takes on a junction of 10 members consisting of Secretaries of Health, Women and Child Development, Law and School Education:
Ms. Jaya Jaitly (New Delhi) – Chairperson
Dr. Vinod Paul, Member (Health), Niti Aayog – Member (Ex-officio)
Secretary, M/o Health and Family Welfare – Member (Ex-officio)
Secretary, M/o Women & Child Development – Member (Ex-officio)
Secretary, D/o Higher Education – Member (Ex-officio)
Secretary, D/o School Education & Literacy – Member (Ex-officio)
Secretary, Legislative Department – Member (Ex-officio)
Ms. Najma Akhtar (New Delhi) – Member
Ms. Vasudha Kamath (Maharashtra) – Member
Dr. Dipti Shah (Gujarat) – Member
Schema of Jaitly’s Task Force
The task force, headed by Jaya Jaitly, focused on certain aspects which justified the formation of the task force. By the constitution of the same, it will be easier to check the interconnection of certain aspects such as age and marriage and motherhood with health, medical well-being and nutritional status of mother and child, during pregnancy, at the time of birth, and thereafter. Also, it aimed at taking and suggesting certain measures to promote higher education among women. It aims at the fact that expert opinion is indispensable for a woman during childbirth. It has been evident that motherhood at a younger age catalyzes infant and maternal mortality. There is special advice and to the committee to ponder upon certain clauses and other aspects of the Prohibition of Child Marriage Act 2006. Opinion of young women on the issue will be given the highest priority in shaping the further amendments in the present law.
According to the Economic Times, the Indian government’s decision to modify the legal age of marriage for women was prompted by a Supreme Court verdict on marital rape exemption in 2017. According to the Economic Times, the central government was prompted to consider the age of marriage for the women by construing a judgment which justified the proposition that child marriages should be rendered void ab initio as it will act as a shield against marital rape. In a judgment, the apex court had also ruled that the marriage of a girl under the age of 15 years is unconstitutional. Since 1978, the minimum age for marriage has been raised from 16 to 18 years old, as amended by the Sarda Act. The task group will be expected to review the marriage age for girls in the shade educational developments and health care, in addition to the age-related laws. Also, there ought to be some consideration about gender equity and the legal marriageable ages for both men and women.
The Sarda Act
Several bills dealing with the age of consent to marriage were introduced in the legislature but did not pass. Prior to the Joshi committee, members of the Women’s Indian Association, National Council of Women and All India Women’s Conference, in India presented their case for altering the age of marriage for women. On June 20, 1929, the Committee had presented its report to the Imperial Legislative Council. Finally, on September 28, 1929, the Imperial Legislative Council passed the Child Marriage Restraint Act, which became law on April 1, 1930, following Lord Irwin’s approval. It established a 14-year-old marriage age for girls and 18-year-old marriage age for men. Consequently, this Act is known as the Sarda Act because Rao Sahib Harbilas Sarda was the proponent of this Act, who was a retired judge and a member of Arya Samaj.
Constitutional Validity of the Bill
There will be gender equality between boys and girls. Article 14 of the Constitution of India says that according to the right of equality and the rule of law, every person is equal to the law. one of the most recent judgments of the Supreme Court is regarding the matter that in NDA, girls should be given the chance to be a part of NDA and they have the right to be selected in the defense services as equally as the boys and it depicts the gender equality and was a big step regarding the same. In 2018, Joseph Shine vs. Union of India laid the foundation of abrogation of Section 497 of the IPC, 1860, also being a very big step towards gender equality. In the Sabarimala judgment, it was the same asserted regarding gender equality where the men and the women, both were allowed to enter the temple of swami Ayappa in Kerala. In the NALSA v Union of India, 2014, the Supreme Court had recognized transgender as the third gender. It was a meritorious move with the prime assumption that humans own equal value and should, therefore, be treated as equal, as well as by equal laws because they are equal to the law.
Why Rage Over The Age?
Construing these aspects, the proposal has come that the age of the marriage has to be 21 years. But if we see, when after the amendment, when the age of marriage for girls was 18 years, the percentage of child marriage was 23 percent, so it is highly justified to assert that if the age of the marriage for girls is increased from 18 to 21, the rate of child marriage is going to increase and not decrease. Some of the organizations started arguing that if the government provides girls, the right to vote or to sign a contract at the age of 18 years, then why shouldn’t they be given the right to marry at the age of 18 years. Some of the organizations are alleging that the government is trying to implement the uniform civil code in a twisted manner like this.
In my opinion, if we go into the deep trench of the discussion, we will find that the proposal is not a bad idea. And not only there will be gender equality in society, but also, there will be a large decrease in the infant and the maternal mortality rate. Also, the government should conduct camps and seminars in certain cities, villages, slums, and other places to aware society of their benefits. A law is applicable in society only when the society accepts the law. If not the consequences will continue to happen as in 1929, when there was a law for the prohibition of child marriage, we have seen that in 2019 and 2020, the crimes of child marriage had not come to a halt. We should construe to the verity that the law is progressive and the same deserves to be supported and accepted by society.
- https://www.pmindia.gov.in/en/major initiatives/niti-aayog-transforming-indias-development-agenda/
This article has been written by Mridul Sinha, 3rd year BA. LL.B (Hons.) student of Dharmashastra National Law University, Jabalpur, Madhya Pradesh.