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The Prevention of Child Marriage (Amendment) Bill, 2021

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The Union Cabinet took the decision to raise the legal age of marriage for women from 18 to 21 years under The Prevention of Child Marriage (Amendment) Bill, 2021.The legal age of marriage for men is 21 years. With this decision, the government will be bringing the age of marriage for both men and women at par. The decision is based on the recommendation of a four-member task force led by former Samata Party chief Jaya Jaitly. Recently the bill has been referred to the parliamentary standing committee for wider scrutiny and discussion with stake-holders. 

Background:

 In India, the minimum age of marriage was prescribed for the first time by the law known as the Sarda Act, 1929. 

  • This law, popularly known as the Sarda Act after its sponsor Harbilas Sarda, a judge and a member of Arya Samaj.
  • It was later renamed as the Child Marriage Restraint Act (CMRA), 1929. In 1978, the law was amended to raise the minimum age of marriage to 18 years for girls and 21 years for boys.
  • Personal laws of various religions that deal with marriage have their own standards, often reflecting custom.
  • For Hindus, 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. 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. For the new age of marriage to be implemented, these laws are expected to be amended.

Major objectives of the Prohibition of Child Marriage (Amendment) Act, 2021.

The major objective of the bills are as follows:

  • It will amend the Prohibition of Child Marriage Act, 2006, to reinforce its application overriding all other existing laws, including any custom, usage or practice governing the parties in relation to marriage; 
  • Bring women at par with men in terms of marriageable age
  • Prohibit child marriage irrespective of any law, custom, usage or practice governing the parties; 
  • Declare that provisions of the Act shall have overriding effect over every other law, custom, usage or practice governing the parties; 
  • The law will be applicable after two years of receiving President Assent.

Why there is a need to amend the existing Marriage act 

Constitutional mandate: 

  • The Constitution guarantees gender equality as part of the fundamental rights and also guarantees prohibition of discrimination on the grounds of sex under article 14, 15 and 16 of the Constitution
  • The existing laws do not adequately secure the Constitutional mandate of gender equality in marriageable age among men and women as the minimum age of the girls are 18 years and men’s are 21 years.

Women empowerment:

  •  Due to early marriage of girls in India, women are often put in a disadvantageous position in regard to higher education, vocational instruction, attainment of psychological maturity and skill-sets, etc.
  • They are burdened with family responsibility at an early age which deprives them of education vocational, instruction etc.
  • Entering into the employment sphere and being part of the workforce to make themselves self dependent before girls getting married is a critical area. These disadvantages perpetuate dependence of women on men.

Health Reasons: 

  • Late marriage of the women will help in lowering maternal mortality rate and infant mortality rate, as well as improvement of nutrition levels and sex ratio at birth, as these would promote possibilities of responsible parenthood for both father and mother, making them more capable of taking better care of their children.
  •  It will also bring down the incidence of teenage pregnancies, which are not only harmful for women's overall health but also result in more miscarriages and stillbirths.
  • International obligation of Government of India:
  •  Discrimination against women also comes in the way of achieving sustainable development goals, and goes against the principles enunciated under the Convention on the Elimination of All Forms of Discrimination against Women 1979, to which India is a signatory.

Criticism of the bill

The bill has been criticised by many. Main points are as follows:

  • Uniform Civil Code and Personal laws
  • The Indian Union Muslim League (IUML) and certain muslim lawmakers opposed the bill when it was debated in the Parliament. They argue that the government's proposal to raise the age of marriage for women to 21 years calling it an attempt to encroach on Muslim personal law. It is seen as a move to Introduce Uniform Civil code in India through backdoor.
  • Article 44 of the Indian constitution provides that the state shall endeavour to secure a Uniform Civil Code for the citizens throughout the territory of India.
  • The Uniform Civil Code (UCC) calls for the formulation of one law for India, which would be applicable to all religious communities in matters such as marriage, divorce, inheritance, adoption.
  • Social and other issues which force early marriage of girls in India
  • Increasing demand for dowry: Parents fear that if they delay the marriage of their girls they will have to pay more dowry as the rate of dowry’s increases with time.
  • Poverty: Many parents due to poverty marry off their girl child due to poverty as they cannot afford the expense relating to the education and rearing of the child 
  • Social Stigma: Many people in our society feel that if they delay the marriage of the girls, the girls may elope with other boys and bring bad names to the family.

The critic says that without changing these social outlook and traditional social mores they will not be able to achieve their stated objectives.

  • Rise in illegal Marriages: Child and women’s rights activists, as well as population and family planning experts have not been in favour of increasing the age of marriage for women on the basis that such a legislation would push a large portion of the population into illegal marriages.
  • Matrimonial Issues and Criminalisation of marriages: There is also a concern that if a girl married at 18 or 19 faces matrimonial problems, and approaches the court for redress, her husband may plead that the marriage is not valid, and she is devoid of rights. It would lead to criminalisation of a large number of marriages that will take place once the law comes into effect. 
  • Effectiveness of Existing Laws:
  • Even with the legal age of marriage for women being kept at 18 years, child marriages continue in India and a decrease in such marriages has not been because of the existing law but because of increase in girl’s education and employment opportunities. Therefore the law to prevent child marriage does not work effectively. 
  • According to National Family Health Survey (NFHS) 5 while child marriage has declined, it has been marginal from 27% in 2015-16 to 23% in 2019-20.
  • Negative Impact on marginalised communities: The law would end up being coercive, and in particular negatively impact marginalised communities, such as the Scheduled Caste and Scheduled Tribes, making them law-breakers.
  • Contradiction with other legal provisions of age: A woman is considered an adult at the age of 18. All laws that apply to adult citizens, including criminal laws, will apply to a woman at the age of 18. Between the ages of 18-21, a woman is old enough to be sentenced to a jail term in an adult prison, but according to the proposed Bill, she is too young to exercise a choice to get married. Critics have called it as women's infantilization rather than women's empowerment.
  • Global Consensus: India is a signatory to the resolution adopted by the United Nations General Assembly in 1989 which recommended 18 years as the minimum age. 
  • Violation of Fundamental Rights: 
  • It was violative of Article 25 of the Constitution, while being an attack on the fundamental rights of citizens and the personal laws of various communities..
    • Article 25 of the Constitution: Guarantees the freedom of conscience, the freedom to profess, practice, and propagate religion to all citizens.

What needs to be done: Recommendations of Jaya Jaitley Committee

  • There is a need to look into increasing access to schools and colleges for girls, including their transportation to these institutes from far-flung areas. 
  • Skill and business training has also been recommended, as has sex education in schools.
  • Guaranteed employment opportunities and access to education are critical factors in providing an enabling environment for young women to make informed choices, rather than criminalizing marriages for girls between the ages of 18-21. 
  • The committee said these deliveries must come first, as, unless they are implemented and women are empowered, the law will not be as effective.
  • An awareness campaign must be undertaken on a massive scale on the increase in age of marriage, and to encourage social acceptance of the new legislation
  • Government needs to emphasize economic and social empowerment of women and girls, as well as targeted social and behaviour change communication (SBCC) campaigns. Increasing the minimum age of marriage of women will also lead to gender-neutrality.
  • Extending the scope of the Right to Education for girls up to vocational studies would be of great help.


Written by Rashmi

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