October 5, 2022

By AMAN KUMAR

Edited by Ms Ragini Sehgal

marriage

INTRODUCTION                                                                   

In ancient times, child marriage was the most followed custom. It had many factors contributing to its prevalence, like, orthodox belief, poverty, tradition, security of girl, gender issue (no value of Girl child) various steps were followed to reach the goal of getting the equal status of women in the society in terms of marriageable age. As in Rukma Bai case of the year 1884, where Rukma Bai was married to Dada Bikali at the age of 11 in the year 1876. She remained with her husband till the age of 19 and after that she refused to stay with him. The court found it appropriate to put British Law of Consent in this case and held that Rukma Bai was incompetent to give the consent. But later the judgement was reversed due to societal pressure. But after the intervention of Queen Victoria, it got reserved. For the first time, the Age of Consent Act of 1891 was enforced.In these relationships, for both the genders, the age to give assent for sexual intercourse was increased from 10 to 12 years, without straightforwardly referring the legal age to get wedded. Then, the Marriage Restraint Act 1929 was brought. In this, age of marriages for both the sexes were determined. For girls, it was 14 years and for boys, it was 18 years. But since the Right to give Consent developed and government felt that it is invalid to give consent before 18 years old, so, the legal age of marriage for both the genders was re-examined under the Prohibition of Child Marriage Act, 2006 which made the legal marriageable age for a girl’s marriage 18 years and a boy’s marriage 21 years.

REASONS BEHIND THE AMENDMENT

1.When one sees the developing countries, except for Pakistan and Bangladesh, they have increased the legal age of marriage. For example, in China, age for marriage for women is 20 years, Egypt also has legal age for marriage for both sexes set at 21 years and  in Nepal, age for a women’s marriage is 20 years .

2. A committee, setup under Jaya Jetli, held that an under-aged girl’s marriage can impact the health of both the baby and the mother, and therefore, can hamper the future development of the mother, child and family. Also, early age marriage can increase mortality.

3. In a situation when women are treated inferior to men, bringing parity in marriageable age cites a good example to the orthodox people. Therefore, this will certainly ensure gender equality to a certain point.

4. The new amendment will bring opportunity to explore further education for women without them feeling burdened. This will provide an opportunity to be self-employed. This will eliminate various ill-practices that society follows, like dowry.

5. Most of the time, it happens that girls are unable to get a job till the age of 18 and if they get married, their husband’s family demands dowry in the form of compensation to the girl being unable to earn, and in such a scenario, marrying after getting employed can help in eliminating the dowry practices.

WHY WE NEED SUCH TYPES OF LAW?

The right to equality is mentioned in the Indian constitution under article 14 according to which women and men are to be treated equally. There is no discrimination based on sex, despite being entitles to equal status and opportunity, women are considered inferior as compared to men in the patriarchal society.  Not only legislature, but also executive and judiciary play an important role to prove that girls and boys are equal, not only in the eyes of the law, but also in the eyes of society. For example, in the Ministry of Defence v. Babita Punia case, women were earlier not empowered to serve in the army permanently. The Supreme Court held that it is violative of the Right to Equality. Also, the Supreme Court, in the Independent Thought case, held that uniformity is needed in the marriageable age of  girls and boys. The Prohibition of Child Marriage Karnataka Amendment Act, 2016 was passed which declared child marriages as void ab initio or invalid in law from the very beginning. It is seen that most often women are the victims of malnutrition, anemia and mental and physical problems. If women will not be internally fit, then how it can be expected that they will contribute in a better way to society. If we raise the legal marriageable age of women, they will get more opportunities. When women will be well educated and have a nuclear family and even if they want more children they must be aware of the pros and cons of having children. Not only about the family development, but they will also be aware more of their rights and liberty, and therefore, will contribute more towards society and in a better way. Gandhi Ji once said, “If you educate a man you educate an individual, but if you educate a woman you educate an entire family”.

DISADVANTAGES OF RAISING THE MARRIAGEABLE AGE

 Most of the time child marriage happens due to lack of education among the family members, and therefore, they do not provide access to education to the girl child too and feel that girls are a burden for their family. In such a scenario, promoting education among people should be the priority.

  1. The Hindu Marriage Act, 1955 and the Indian Christian Marriage Act, 1872 prescribe the age of 14 years for the bride and 21 years for the groom. Now making a central law  is going to violate the principle that everyone is allowed to follow their personal laws.
  2. The government should not only focus on the age restriction but also on  poverty- related schemes to prevent child marriages.
  3. If a girl child at the age of 19 or 20 is in a relationship, but the legal age for the marriage is 21 years, in such a scenario, the age of consent will be coterminous with the legal age of the marriage. Even if she is major after attaining the age of 18 years, she will not be entitled to give her consent for marriage.
  4. In the present situation, if a girl is married before 18 years old, society easily accept and if it is accepted by society then age being legal or illegal does not matter. Despite several rules and regulations, child marriage is still followed. If there will be a lack of social acceptance, increasing the age will not be effective.
  5. Despite of legally being of marriageable age, child marriage is still practiced in India and if there is a decrease in the number of cases of child marriages, it is not the act but the empowerment in the society due to girls’ education. UNFPA has also proved this. In such a situation, a part of the society which is less educated will hardly be affected by this provision.
  6. It is hard to implement as despite the legal age for girls’ marriage being 18 years, most of the times, they are married even before attending the age of 18 years.

WAY FORWARD/ SUGGESTIONS TO OVERCOME THE LOOPHOLES.

1. Child marriage is practiced in India. In such a situation, there should be proper registration of the ages and the legality of the marriages by the bureaucrats or panchayats or municipalities, so that no women’s right gets violated and proper legislation should be ensured.

2. There are several rules and regulations in the country but still, child marriage is practiced. Government should try to make people aware about this at the ground level as well. Most of the times, it happens that an uneducated person is unaware of the rules and regulations. In such a scenario, they are unfamiliar with the rules and regulations. Media, bureaucrats, newspapers, etc. can play an active role in promoting this.

3. As orthodox society prevents women from getting education, therefore, they remain unfamiliar with their rights, freedoms, liberty, etc. In such a scenario, girl’s education will play a significant role. Opening government schools is not sufficient. There should be proper check on the girl’s education.

4. Government should try to provide social and financial support to the vulnerable strata society, where girls become victims due to lack of finance. Economic growth, as well as educational measures, are required to overcome this problem.

5. If a girl child wants to marry after attaining the age of 18 with her consent, they will be deprived of it due to the act. There should be legislation to make sure that the consent of girl child is protected. And make sure that after attending the age of 21, they are getting married with consent.

6. This proposal is in line with the cherished idea of the Uniform Civil Code. This will not violate the right of the girls only based on caste and religion. This proposal envisages the UCC as a good step. But the government should ensure that while taking these steps personal laws are not violated.

CONCLUSION

Increasing the legal age of girl’s marriage can be a good step taken by the government for ensuring equality, protection of the health of the girl child and their babies and many more reasons. Government should try to promote these steps at the ground level as well so that every individual is aware of these laws. This rule has created some doubts, but the government should certainly try to find out the solution to ensure the right of the girl child and promote equality.

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