This article has been written by Kirti a Patil who is preparing for judicial examination
Introduction:
In more than 40 nations, mostly in Sub-Saharan Africa and South and South East Asia, including India, Pakistan, and Bangladesh, early child marriage—especially of girls—is a frequent practice. Several of these nations have ratified international conventions that guarantee women’s and children’s rights, including the imposition of an 18-year-old legal minimum age for marriage. In fact, Cameroon has gone one step farther and set a minimum age of 21 for girls to marry. Despite this, a startling 62% of women are married before becoming 18 years old.
A recent UNICEF report from 2005 states that the percentage of married females between the ages of 15 and 19 in the following countries is as follows: Congo (74%), Niger (70%), Afghanistan (54%), Bangladesh (51%), and Iraq (28%). In Nepal, however, 40% of girls marry before they turn 15. According to the most recent estimate, 44% of Indians get married before turning 18. India’s child marriage issue is complicated due to societal norms, religious traditions, economic considerations, and naive ideas. It is challenging to determine the beginnings of child marriage because there are no records of the practice in ancient India.
Child marriage is more common in a few northern areas than it is in the southern ones. While the exact origins of the practice of child marriage are unknown, there is evidence that early marriage was discouraged by ancient scriptures (Bridkar, Sudheer on Child Marriage at www.vivaaha.org/child.htm). The study (Bhatt, et al.) that mentions child marriage alludes to a school of thought that claims that the introduction of many cultural forms from the northern borders is what gave rise to the practice of child marriage.
These may have encouraged early marriage in a number of societies, possibly as a protective measure against foreign invaders kidnapping or attacking their females. Age trends have changed significantly throughout time, impacting marriage, a religious institution that is essential to Indian civilization. Due to changing attitudes, increased access to education, and shifting economic conditions, the long-standing custom of early marriages—which is ingrained in cultural and societal values—is changing. The developments and debates about India’s marriage age are examined in this article.
Historical Perspective:
In the past, early weddings have been a common cultural practice in India. This practice was frequently connected to cultural and economic considerations and was firmly established in society standards. Families believed that marriage at an early age was necessary to maintain caste continuity, social stability, and family honor.
Changing Trends:
The trends of Indian marriage age have clearly changed in the last several decades. This shift is the result of several things. Education has become a potent motivator as more youth pursue postsecondary education and professional aspirations. Because of this, people are choosing to put off getting married until they reach particular personal and professional goals.
A significant influence has also been played by economic independence. Since more and more women are working, many now need to be financially stable before they contemplate getting married. The average marriage age has increased as a result, especially in metropolitan regions.
Legal Reforms:
The Child Marriage Restraint Act of 1929:
The Sarda Act, sometimes known as the Child Marriage Restriction Act, was a statute designed to limit the practice of child marriage. It was implemented on April 1st, 1930, and it covered the whole country, with the exception of a few princely kingdoms like Jammu & Kashmir and Hyderabad. The age of marriage was set by this Act at 14 for women and 18 for men. Following India’s independence in 1949, the minimum age was raised to 15 for girls and then raised to 18 and 21 for boys and girls, respectively, in 1978. When a man between the ages of 18 and 21 marries a child, he faces a maximum 15-day jail sentence, a 1,000 rupee fine, or both. Males over the age of 21 were punished with up to three months in jail as well as a possible fine.
Anyone found guilty of conducting or supervising a child marriage ceremony faces a maximum three-month jail sentence and a fine, unless they can demonstrate that the marriage they performed was not a child marriage. A parent or guardian of a kid involved in a marriage faces a maximum sentence of three months in jail or a possible fine. In order to keep raising the age of male and female children, it was changed in 1940 and 1978.
The Prohibition of Child Marriage Act, 2006:
The Government of India introduced The Prohibition of Child Marriage Act (PCMA) in 2006 in response to the plea (Writ Petition (C) 212/2003) of the Forum for Fact-finding Documentation and Advocacy at the Supreme Court. The PCMA took effect on November 1, 2007, and it was designed to rectify the shortcomings of the Child Marriage Restraint Act. Rather than restricting child marriage, the term change was intended to emphasize prevention and prohibition of it. In addition to making it difficult and time-consuming to stop child marriages, the prior Act ignored officials as potential role models for ending the weddings. In order to further protect youngsters, this Act made some substantial adjustments while maintaining the same age ranges for adult males and females. It is possible for boys and girls who were coerced into child marriages to annul their union up to two years after becoming adults, and in rare cases, minor marriages can be declared void before the minors even become adults.
If the marriage is dissolved, all gifts, money, and valuables must be returned, and the girl must be given a place to live until she marries or grows up. The best interests of the children are supposed to guide the courts when granting parental custody to children born out of wedlock. These children are regarded as legitimate. A fine of up to two years in prison may be imposed on any male above the age of eighteen who marries a minor or arranges or leads a child marriage ceremony.
Prohibition of Child Marriage (Amendment) Bill, 2021:
The ‘Prohibition of Child Marriage (Amendment) law, 2021’ was a law introduced in Parliament by the Indian government in December of 2021. This law aims to raise the marriage age to 21 in order to bring women’s and men’s marriage ages into parity. The fundamental idea behind the Bill is that child marriage will become less common by raising the marriage age. Women and Child Development Minister Smriti Irani said shortly after the bill was introduced that its goal is to replace all existing laws, including customs, traditions, and marriage-related behaviors.
Controversies:
There have been disagreements regarding how India’s marriage age is evolving. Some claim that the trend toward later weddings is undermining traditional values, while many others welcome the change. The delaying of marriage is seen by conservative segments of society as a break from cultural standards, which sparks discussions about cultural identity and communal cohesiveness.
Concerns have also been expressed over the effect on fertility rates and the demographic dividend. Postponed marriages have the ability to lower the rate of population increase, which could have an impact on the demographic composition of the nation and its economic repercussions.
Consequences of child marriage:
Early maternal deaths:
Because younger girls are less likely to be educated about reproductive concerns, pregnancy-related deaths are recognized as the primary cause of death among married females between the ages of 15 and 19. Compared to girls between the ages of 20 and 24, these girls have a twofold increased risk of dying during childbirth. The risk of maternal death is five times higher for girls under the age of fifteen.
Infant health:
Compared to moms over the age of 19, infants born to mothers under the age of 18 have a 60% higher chance of dying in the first year of life. In the event that the babies live, they are more likely to experience malnourishment, low birth weight, and delayed physical and mental development.
Fertility outcomes:
The International Institute for Population Sciences and Macro International conducted a research in India in 2005 and 2006 that revealed high fertility, poor fertility outcomes within child marriages, and insufficient fertility control. Ninety-eight percent of young married women said they had never used a contraception before having their first child. 23.9% of respondents said they became parents in the first year of their union. Over the duration of their marriage, 17.3% of respondents said they had three or more children. 15.2% of respondents reported an unintended pregnancy, and 23% reported a quick repeat delivery. 15.3% of women reported having an abortion, miscarriage, or stillbirth. Compared to metropolitan areas, slums have greater fertility rates.
Violence:
Compared to older women, younger girls in child marriages are more likely to face domestic abuse in their unions. According to an International Centre for Research on Women research carried out in India, girls who marry before turning 18 are three times as likely to be sexually abused and twice as likely to be punched, slapped, or intimidated by their spouses. Young brides frequently exhibit signs of PTSD and sexual assault.
Judicial Responses:
Numerous habeas corpus petitions filed for the court-ordered production of girls are, according to some judges, essentially elopement cases. The decisions covered below show that the courts take this seriously. The Andhra Pradesh High Court confirmed in Kokkula Suresh v. State of Andhra Pradesh that a minor girl’s marriage is not void. The father is prohibited from requesting legal custody of his daughter by the court’s ruling that the husband is the natural guardian of a married minor’s person and property and is therefore entitled to her custody.
The Punjab and Haryana High Court noted in Ashok Kumar v. State that couples who marry for love are pursued by the police, relatives, and bodyguards. Cases of kidnapping and rape against the boy are frequently reported. The couple is occasionally in danger of being assassinated; these murders are known as “honour killings.” The state is frequently a silent observer.
In the case of Payal Sharma, also known as Kamla Sharma, v. Superintendent, Nari Niketan, Agra, the Allahabad High Court granted the girl’s request to be classified as a major, rejecting the father’s claim that she was a juvenile.Six In addition, the court ruled that she was entitled to live with anybody and travel anywhere as a major. “In our view, a man and a woman can live together even if they choose not to get married. Although society may view this as immoral, it is not against the law. The court made the observation that morality and the law are not the same thing. The girl claimed that her life was in jeopardy, therefore the court also mandated police protection to make sure she was safe.
In Jiten Bouri v. State of West Bengal, the Calcutta High Court made the following rulings while allowing a young girl to marry her husband: The girl has reached the age of discretion to understand her own welfare, even though she hasn’t gained majority yet. This is a crucial factor in determining whether or not to grant her custody. According to the Hindu Marriage Act, she may not have reached marriageable age, yet a marriage entered into in violation of the law is neither null and invalid nor voidable. The girl has made it clear that she does not want to go back to live with her father and instead wants to accompany her spouse.
The liberal interpretation of the constitutional guarantees of equality and individual freedom is measured against these rulings. Occasionally, our judges have used fundamental human rights principles to resolve disputes out of concern for social justice, sparing young girls from state-run “protective homes” and their parents’ rage. They could only accomplish this by upholding the legitimacy of these unions and permitting the girls to live with the partners of their choosing.
Conclusion:
India’s marriage age is changing dramatically due to a number of causes including economic independence, education, and legal reforms. Even though many people view the trend in later marriages as favorable, there are some disagreements about it. Maintaining social norms while giving people the freedom to make decisions based on their own goals and circumstances requires striking a balance between tradition and modernity. The debate over marriage age will probably always be a dynamic and changing part of Indian culture as it develops further.
Reference:
- https://www.savethechildren.org/us/charity-stories/child-marriage-a-violation-of-child-rights
- https://en.wikipedia.org/wiki/Child_marriage_in_India
- Chromeextension://efaidnbmnnnibpcajpcglclefindmkaj/https://delhicourts.nic.in/VWDC_files/sm/Study%20Material%20Training%20Programme%2008-09%20September-2018/Reading%20Material%20Part%20-%201%20(%20POCSO%20Material,%20Mock%20Case,%20Contents%20page)/3.%20POCSO/Controversy_over_Age_of_Consent.pdf
- https://www.jstor.org/stable/2731762