This article is written by Pooja Agarwal, an LLB student from CMR School of Legal Studies.

Introduction

On the occasion of 74th Independence day, while addressing the nation Prime Minister Narendra Modi said in his speech that the center has set with the 10 members of the committee who are reconsidering the minimum age of marriage for girls. Before 1978 the legal marriage age for the girl was 15 years which was changed in 1978 after by amending erstwhile Sarda Act of 1929. As of now, the girls are allowed to get married legally when she is 18 years old. Even in the 21st Century in some of the rural areas of India girls are forced to marry before 18 years which is illegal. Under Politician Jaya Jaitley, the center had formed a 10 member task force in June this year and to recommend that among other things, when the legal age of marriage for women could be changed form 18 years which is legally accepted now. The committee is headed by Jaya Jaitley. 

The constitution of the task force by the Union Women and Child Development ministry followed an announcement by the Union Finance Minister Nirmala Sitharaman during her budget speech in February 2020. On 2nd June, 2020 the Women and Child Development ministry  set up a high level committee under Former Samata Party president Jaya Jaitley to review the legal age for marriage of women. In the speech Finance Minister said as India progresses further, opportunities open up for women to pursue higher education and careers. There are imperatives of lowering MMR as well as improvement of nutrition levels. Entire issue about the age of a girl entering motherhood needs to be seen in this light. So in this context, she proposed to appoint a task force that will present its recommendations in six months’ time. The committee was having a deadline to submit its report by 31st July but which is yet to submit its report to the government.

In 2018, the National Human Rights Commission had recommended that the marriageable age for both men and women should be uniform in India. The human rights watchdog, however stopped short of specifying what the age should be.

In the same year, the Law Commission had recommended that the legal age for marriage for both gender, should be fixed at 18 years, the universal age of majority.

Members of the Task Force

It includes members of government think-tank Niti Aayog, secretaries of higher education, school of education, Ministry of Women and Child Development and ministries of health, law and justice, legislative department apart from academicians, among others and consultations will be done with all the stakeholders involved

Terms of reference for the task force are

  1. Examine the correlation of age and marriage and motherhood with health, medical well being and nutritional status of mother and neonate/infant/child, during pregnancy, birth and thereafter.
  2. Suggesting the measures for promoting higher education among women.
  3. Suggest suitable legislative instruments and amendments in existing laws to support the recommendations.
  4. There should be a detailed roll out plan with timelines to implement its recommendations.
  5. The main reason that health is the foremost on the list of expert opinion as motherhood at a younger age increases infant and maternal mortality.
  6. The focus should be on the incentives rather than the punishments about the flouting of the existent anti child marriage law among socio-ethic groups in the country.
  7. The committee are also advised to look at the various clauses in Prohibition of Child Marriage Act 2006.
  8. It has been suggested that the members of the task force invite the major stakeholders: young women and men who will be directly impacted, to offer their opinion.
  9. It will also look at key parameters like Infant Mortality Rate (IMR), Maternal Mortality Rate (MMR), Total Fertility Rate (TFR), Sex Ratio at Birth (SRB), Child Sex Ratio (CSR) and will examine the probability of increasing the age of marriage for women from the present 18 to 21 years.

According to a report in the Economic Times, Indian government’s move to revise the legal age of marriage for women, may have triggered by a 2017 Supreme court ruling on marital rape exemption. The Economic Times refer to  Judgement that “which held that child marriages should be rendered void ab initio to shield women from marital rape, had set the ball rolling for the center to amend the existing law to declare child marriages invalid”.

The Hindu then has also reported that, “Exception clause to the heinous offences of rape allows a man to have sex with his wife who is not aged below 15”.

According to the Indian Express Report, The Apex Court, however, sought to know as to whether Parliament debated the aspect of protecting married girls, between the age of 15 to 18 years, from the forces sexual acts by their spouses. It also asked whether the court could intervene to protect the rights of such married girls who may be sexually exploited by their spouses. The apex court also said that the marriage of a girl, who is below the age of 15 marriage years was illegal.

Then the minimum age of marriage was revised from 16 to 18 since 1978 which was amended by the Sarda Act. It was added the task force still needs to study again the marriage age, in relation to the changes in education and health, beyond what the law on age is. There may also be a discussion on the parity between genders and the legal marriageable ages for both gender. But there is a recommendations which are likely to propose that the minimum age of marriage for women in India can be raised to 21 at par with the men. 

Linking Between Age of Marriage and Nutrition

  1. A study conducted by the International Fund Policy Research Institute (IFPRI) which was published in 2019 showed that children born to adolescent mothers (10 to 19 years) were 5 percentage points more likely to be stunted than those born to young adults (20 to 24) and 11 percentage points more stunted than children born to adult mothers (25 years or older).
  2. Children born to adolescent mothers also had 10 percentage points higher prevalence of low weight as adult mothers.
  3. It also highlighted other factors, such as lower education among teenage mothers and their poor economic status, which had the strongest links with a child’s height and weight measurements.
  4. It recommended that increasing age at first marriage, age at first birth and girl’s education are a promising approach to improve maternal and child nutrition.

Need for revising the minimum age of marriage of women

1.There are many arguments in favour of increasing the minimum age of marriage of women.

a)The National Coalition Advocating for Adolescent Concerns asserts that increasing the legal age of marriage for girls will only “artificially expand the numbers of married persons deemed underage and criminalize them and render underage married girls without legal protection.

b)Instead, transformative, well resourced measures that increase girls’ access to education and health, create enabling opportunities and place girl’s empowerment at the center will not just delay marriage but lead to long them positive health and education outcomes.

2.It recommended bringing education for three-to-five- year-olds and 15-to-18 years under the Right to Education, instead of confining the law to children between 6 years to 14 years. Early pregnancy is associated with the increased child mortality rates and affects the health of the mother and at the same child.

3.Despite various laws mandating minimum age and criminalizing sexual intercourse with minor, child marriage are very prevalent in India.

4.The government may remove the gender parity in legal marriage and raise the women marriage age to 21.

5.Poverty, lack of educational opportunities and limited access to healthcare perpetuate this practice, which is largely viewed as a solution by the communities to not only secure their daughter’ future but also mitigate their dire economic circumstances.

Present age for marriage

In 1860, the Indian Penal Code criminalized sexual intercourse with a girl below the age of 10 years. In addition to this, the Age of Consent Bill, 1927, made marriage invalid with a girl under the age of 12 years. In the year 1929, the Child Marriage Restraint Act set the minimum age of men and women as 14 and 18 respectively. This law is known as the Sarda Act.

  1. The Special Marriage Act 1954 and the Prohibition if Child Marriage Act, 2006 prescribe 18 and 21 as the minimum age of consent for marriage of women and men respectively.
  2. An individual attains the age of majority as 18 as per the Indian Majority Act, 1875 and is distinct from the minimum age of marriage.
  3. The law prescribe a minimum age of marriage to essentially outlaw child marriages and prevent the abuse of minors. Personal laws of various various religions that deal with marriage have their own standards often reflecting customs.
  4. Presently for Hindus, Section 5(iii) of The Hindu Marriage Act, 1955, men who are 21 years and women of 18 years of age can marry under the law. In Islam the marriage of a minor who has attained puberty is considered valid.
  5. However child marriage are not illegal-even though they can be declared void at the request of the minor in the marriage.

Ground on which law was challenged

  1. In 2019, the Delhi High Court sought the central government’s response in a plea that sought a uniform age for marriage for men and women.
  2. The petitioner had challenged the law on the grounds of discrimination.
  3. He argued that Articles 14 and 21 of the constitution were violated by having different legal ages for men and women to marry.
  4. Articles 14 and 21 guarantee the right to equality and the right to live with dignity.
  5. Two significant Supreme court (SC) rulings can act as a precedents to support the petitioner’s claim.

a) 2014– In the Nalsa v Union of India, the supreme court recognized transgenders as the third gender. The justice is delivered with the assumptions that humans have equal value and should, therefore, be treated as equal, as well as by equal laws.

b) 2019- In the Joseph Shine v Union of India, the supreme court decriminalized adultery. It said that a law that treats women differently based on gender stereotypes is an affront to women’s dignity.

Merits of revision of minimum age of women

  1. Women will be entering into higher education space since societal pressure to get marries at 18 would be reduced.
  2. It will also be beneficial from the view point of maturity of the women getting married.
  3. It will lower Maternal Mortality Rate, improvement of nutritional levels and related issues.
  4. Revision of the minimum age for marriage of women will also improve their standard of living as they will be more educated which will also create many job opportunities for themselves and to grow and being competitive.
  5. Increase in the legal age for marriage of women will also open up opportunities for education of women.

Conclusion

Early pregnancy is associated with increased child mortality rates and affects the health of the mother. Thus, there is need to focus on a mother’s health and readiness to carry a child. The government needs to emphasize upon economic and social empowerment of women and girls as well as targeted social and behavior change communication campaigns. Increasing the minimum age of marriage of women will also lead to gender neutrality. The health argument behind raising the age of wedding among girls is that child bearing at lower ages ends up in complications thereby increasing baby and maternal mortality. The fertility argument behind the move is higher age of wedding suggests that a lesser variety of procreative years for girls. Thus the task force set up will help in removing the gender parity in the martial age. This judgement if passed will have a huge impact on child marriages since a UNICEF study showed that 27 percent of girls in India are married before their 18th birthday. Since a higher age will enforce stricter laws around the marriages in the country. The government reconsideration the raising of legal age of marriage for women to 21 years is a much needed move as the last time such a changes was made 42 years ago in 1978, when the minimum age was raised from 15 to 18.

As in this year that is 2020, all the bad news have been received and will be remembered but the revision of law to bring about more equality in the Indian social sphere should be recognized for what it is, a rare bright moment. At the same government should take strict measures to make sure that the laws are implemented across the country, mainly in rural areas. The revision of minimum age of marriage for women will also encourage female higher education and their freedom to study further and be empowered before being burdened with early marriage and motherhood. It is necessary that we improve the status of India when it comes to improving the maternal and the child nutrition. Interventions to increase the age of marriage, like the one being considered by the task force child, could, therefore, go a long way in addressing concerns such as age at first birth that will not only ensure that both the mother and the infant remain healthy and their mortality rates are in check but will also help keep girls in schools and higher education longer in rural areas.

References

  1. https://www.livemint.com/news/india/government-to-reconsider-minimum-age-of-marriage-for-girls-pm-modi-11597469241110.html
  2. https://theprint.in/health/why-proposal-to-review-marriage-age-for-women-has-split-modi-govt/483549/
  3. https://www.thehindu.com/news/national/government-may-relook-age-of-marriage-for-women/article32364889.ece
  4. https://www.newindianexpress.com/nation/2020/aug/15/panel-formed-to-reconsider-minimum-age-of-marriage-for-girls-pm-modi-2183837.html

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