PM in his I-Day speech has announced that the central government has set up a committee to reconsider the minimum age of marriage for women during his address to the nation on the 74th Independence Day.
UNICEF estimates suggest that each year, at least 1.5 million girls under the age of 18 are married in India.
- It makes our country home to the largest number of child brides in the world — accounting for a third of the global total.
- Nearly 16 per cent adolescent girls aged 15-19 are currently married.
The minimum age of marriage, especially for women, has been a contentious issue. The law evolved in the face of much resistance from religious and social conservatives. Currently, the law prescribes that the minimum age of marriage is 21 years and 18 years for men and women respectively.
Legal status :
The minimum age of marriage is distinct from the age of majority which is gender-neutral.
An individual attains the age of majority at 18 as per the Indian Majority Act, 1875. The law prescribes a minimum age of marriage to essentially outlaw child marriages and prevents the abuse of minors.
Taskforce for women empowerment :
- The Union Ministry for WCD had set up a task force to examine matters pertaining to the age of motherhood, imperatives of lowering Maternal Mortality Ratio and the improvement of nutritional levels among women.
- The task force would examine the correlation of age of marriage and motherhood with health, medical well-being, and nutritional status of the mother and neonate, infant or child, during pregnancy, birth and thereafter.
- It will also examine the possibility of increasing the age of marriage for women from the present 18 years to 21 years.
- Personal laws of various religions that deal with marriage have their own standards, often reflecting custom.
- For Hindus, Section 5(iii) of The Hindu Marriage Act, 1955, sets 18 years as the minimum age for the bride and 21 years as the minimum age for the groom.
- However, child marriages are not illegal — even though they can be declared void at the request of the minor in the marriage.
- In Islam, the marriage of a minor who has attained puberty is considered valid.
- The Special Marriage Act, 1954 and the Prohibition of Child Marriage Act, 2006 also prescribe 18 and 21 years as the minimum age of consent for marriage for women and men respectively.
- Additionally, sexual intercourse with a minor is rape, and the ‘consent’ of a minor is regarded as invalid since she is deemed incapable of giving consent at that age.
Historical background of the issue :
- The IPC enacted in 1860 criminalised sexual intercourse with a girl below the age of 10.
- The provision of rape was amended in 1927 through The Age of Consent Bill, 1927, which declared that marriage with a girl under 12 would be invalid.
- The law faced opposition from conservative leaders of the Indian National Movement, who saw the British intervention as an attack on Hindu customs.
- A legal framework for the age of consent for marriage in India only began in the 1880s.
The Sarda Act and its significance
- In 1929, The Child Marriage Restraint Act set 16 and 18 years as the minimum age of marriage for girls and boys respectively.
- The law, popularly known as the Sarda Act after its sponsor Harbilas Sarda, a judge and a member of Arya Samaj, was eventually amended in 1978 to prescribe 18 and 21 years as the age of marriage for a woman and a man respectively.
Debate on legal standards :
- There is no reasoning in the law for having different legal standards of age for men and women to marry. The laws are a codification of custom and religious practices.
- The Law Commission consultation paper has argued that having different legal standards “contributes to the stereotype that wives must be younger than their husbands”.
- Women’s rights activists have argued that the law also perpetuates the stereotype that women are more mature than men of the same age and, therefore, can be allowed to marry sooner.
- The international treaty Committee on the Elimination of Discrimination against Women (CEDAW), also calls for the abolition of laws that assume women have a different physical or intellectual rate of growth than men.
Reasons for having a relook at the law
- Despite laws mandating minimum age and criminalizing sexual intercourse with a minor, child marriages are very prevalent in the country.
- From bringing in gender-neutrality to reduce the risks of early pregnancy among women, there are many arguments in favour of increasing the minimum age of marriage of women.
- Early pregnancy is associated with increased child mortality rates and affects the health of the mother.
Constitutional grounds :
- Petitioners, in this case, had challenged the law on the grounds of discrimination.
- It is argued that Articles 14 and 21 of the Constitution, which guarantee the right to equality and the right to live with dignity, were violated by having different legal ages for men and women to marry.
- Two significant Supreme Court rulings can act as precedents to support the petitioner’s claim.
- In 2014, in the ‘NALSA v Union of India’ case, the Supreme Court, while recognising transgenders as the third gender, said that justice is delivered with the “assumption that humans have equal value and should, therefore, be treated as equal, as well as by equal laws”.
- In 2019, in ‘Joseph Shine v Union of India’, the Supreme Court decriminalized adultery, and said that “a law that treats women differently based on gender stereotypes is an affront to women’s dignity”.