By Sanya Sethi
Introduction
The debate on the “age of marriage” is one such debate which has existed in India since a long period of time and still continues to be a reason of controversy. The Age of Consent Act which was enacted in the year 1891 further added to the complexities of this debate as it posed a threat to Brahminical Patriarchy which placed a high premium on the virginity of the child brides. The reformist campaign for raising the age of consent resulted in constant conflicts between the British liberal authorities and the cultural nationalists who were anxious about its effects in the Hindu domestic order. Since then, several legislations have been enacted in India which have sought to provide for an age of marriage and have also been amended several times. The Protection of Children from Sexual Offences, 2012 (POCSO), a legislation which seeks to protect children from sexual exploitation by adults is another aspect which complicates the issue as under a garb of protection, it restricts its subjects from exploring their sexualities. Furthermore, in light of the current government seeking to increase the marriageable age for women from 18 to 21 years, it also becomes important to take into account the views of women’s rights activists as well as child rights activists since women and children form the category of people who are most affected by the age of marriage, yet are hardly at the forefront of these debates. This establishes the paternalistic nature of the State and its constant endeavor to treat women as submissive beings unable to take decisions with respect to the matters that majorly affect them. Therefore, it is argued that increasing the age of marriage does not benefit women as it is claimed by the State and while talking about law reform what should rather be focused on is to have a uniform age of marriage for men and women if equality is to be achieved substantially.
Tracing the History of Marriage Legislations in India
The main justification behind the existence of an age of marriage is to prevent child marriages and the abuse of minors. The earliest cases concerning this debate was that of Dadaji Bhikaji v. Rukhmabai[1] in the year 1884. Married to Dadaji Bhikaji at the age 11, Rukhmabai continued to live with her step-father and mother till she turned 19. She refused to go and live with Bhikaji, which lead to the origin of this case in the year 1884. While hearing this case, Justice Robert Hill Phinney found it difficult to apply the British law of consent as he could not find a precedent in India. In his opinion, Rukhmabai was a child when she got married and thus, could not have “consented”. However, this opinion did not fit well within the “conservative” Indian society due to which, Phinney’s judgment was reversed and the case was reopened. On the other hand, Rukhmabai was not someone who would give up easily and she wrote a letter[2] to the editor of The Times where she petitioned the Queen under the impression of a “Hindoo Lady” requesting her to intervene and finally, annul the marriage. As a consequence, the Queen overruled the Court’s verdict which ordered Rukhmabai to live with her husband or spend six months in jail. Considered as one of the landmark cases, this case also defined Indian nationalism within religious and cultural boundaries.
Since the Age of Consent Act which raised the age of consent for sex from 10 to 12 years was passed in the year 1891, the age of marriage has attracted many legal controversies in India. It was perceived as an attack on the Indian religious autonomy by the Nationalist Indians which also lead to the emergence of widespread protests.[3] Although, this act did not directly address the age of marriage debate, but it was addressed through the Child Marriage Restraint Act of 1929 (CMRA), popularly called the Sarda Act, which fixed the minimum age of marriage for boys to 18 years and girls to 14 years. This was followed by significant protests as the positioning of Indian women of refinement against their western counterparts emerged as a response to the colonial state and the western discourse which continually perceived Indian women as subjugated and dispossessed.[4] The act was amended in 1949 and the minimum age of marriage for girls was raised to 15 years. The age of consent under rape law was raised to 15 years in the year 1949, which became a basis for enacting the Hindu Marriage Act, 1955 which laid down the minimum age of 18 for boys and 15 for girls,[5] which was further amended in 1978 to raise the minimum age for girls to 18 and that of boys to 21 years.[6] However, these enactments did not render under-age marriages void because of the grave social implications such a move would have on the children born of such unions and ideology of Hindu marriages being sacramental.[7] Additionally, the CMRA merely focused on the appropriate age for a husband to have sexual relations with his wife and there was no reference to the negative development of the girl child or her free consent.[8] Therefore, the CMRA came to be viewed more as an aspiration instead of a legal code and socially sanctioned community norms prevailed over the legal dictate. Finally, this was incorporated in the Prohibition of Child Marriage Act of 2006 (PCMA) which replaced the CMRA, where the age limit was subsequently revised to 21 and 18 years respectively. However, it treats underage marriages as valid, but voidable. Section 3 of the PCMA states that a child marriage will be rendered voidable only if the children or their guardians file legal proceedings. However, given the social fabric of the country and the societal norms that surround it, it is unlikely that the child brides or their families would choose to nullify their marriages as by the time the proceedings are initiated, the marriage would already have been consummated. This can be assessed by the National Family Health Survey (2015-16) which depicted that even when the 1978 law made child marriages for girls below 18 and boys below 20, illegal 26.8% of women between the ages 20-24 still continued to get married before the age of 18.[9]
Furthermore, POCSO is one of the first legislations that provide for the establishment of special Courts for trying the cases of sexual offences related to children that protects them from sexual exploitation by adults as well as criminalizes sexual exploitation among children who are between 16 to 18 years of age. Although, it is undisputed that children need protection from such forms of violence, but POCSO further complicates the discussion surrounding age of marriage by raising the age of consent to 18 years, which implied that any person below the age of 18 is a child. In practice, it results in certain negative consequences as under the garb of protection, POCSO ends up criminalizing even consensual sexual activity between people below the age of 18. Moreover, it is often invoked by families of daughters who are in a consensual sexual relationship or have eloped,[10] making it a means of punishment more than a means of protection. The fear of violence should not take away someone’s right to take charge of their bodies and discover their sexuality. Therefore, it is within this grey area between agency and age that the debate on child marriage is located.[11]
Analysing the Current Debate on the Issue
As the current government of India is setting up a task force[12] for increasing the marriageable age of women from 18 to 21, the debate on age of marriage for women in India has yet again become a phenomenon of national concern. The report “towards equality”,[13] released with respect to child marriages recommended legislation prohibiting Courts from granting any relief in respect of a marriage solemnized in violation of the age requirements prescribed by the law unless both the parties have completed the age of 18 years. Several policy initiatives have been introduced by the Government of India to address the issue of early marriages such as the National Population Policy 2000 that promotes delayed marriages for girls and the National Policy for Empowerment of 2001.[14]
However, child rights activists are of the view that by increasing the marriageable age of women from 18 to 21, the government is shifting focus from solving the real issues that lead to child marriages in the first place. Kavita Ratna, the director of advocacy at The Concerned for Working Children, a child rights NGO, and who also contributed in putting together the young voices report stated that “If the root causes of child marriage are not addressed, then this law is actually going to harm us. One girl child even told me that the cases of female foeticide will increase because the parents would be more burdened by girl children if marriageable age increases. If they are allowed to vote at 18, why are they not allowed to decide if they want to get married?”[15] Furthermore, Madhu Mehra, the founder of Partners in Law and Development is of the view that the PCMA which was actually designed to protect young people is set up in the Indian context in such a way that it is being used to harm them. She also believes that if the minimum age is increased from 18 to 21, women could become even more vulnerable to parental control and backlash as parents could now use the law to punish elopement right up to 21 years.[16] She had also made a submission to the task force suggesting that it is not the time to make changes to the PCMA, but instead what requires reconsideration is POCSO and to reduce the age of consent. Furthermore, women’s rights activists such as Mary E. John, who presented a memorandum to the task force is of the view that the widely accepted notion that a higher age for marriage is a better thing and translates into more opportunities and decision-making power for women, does not on its own translates into better outcomes.[17] Age per se does not really make much of a difference, as if the surrounding infrastructure doesn’t support women, nothing substantial can be achieved. It is also argued by women’s rights experts that since child marriages have been on a decline, there is no rationale for raising the age of marriage.
In the year 2008, the law commission report on reforming family law[18] proposed a uniform age for marriage as 18 years and not 21. Additionally, it was recommended by National Human Rights Commission in the year 2018 that there should be a uniform age of marriage for boys and girls. Furthermore, in Independent Thought v. Union of India,[19] where the Supreme Court looked at child marriages, opined that it is universally accepted that a child is someone who is under the age of 18 and therefore, it is argued that it should be the age of marriage. Also, in Joseph Shine v. Union of India,[20] which decriminalized adultery, the Court opined that a law that treats women differently based on gender stereotypes is an affront to their dignity. Furthermore, statutes such as the Indian Majority Act, 1875 that provides for the right to vote and to enter into contracts, provides so for people who have attained the age of 18 years. Lastly, if the international conventions and obligations are looked at, even the Convention on Elimination of all Forms of Discrimination Against Women (CEDAW) recommends the age of 18 as the age of marriage. Increasing the age of marriage would mean that women would have no say in their personal matters unless they are 21 and would lead to their further persecution. It would also lead to an increase in the parental backlash against young adults who choose to marry against their parents’ wishes and would also result in a criminalization of consensual sexual activity. Therefore, it can be concluded that an increase in the age of marriage to 21 does not appear to benefit women as it is claimed by its supporters. Instead, the analysis reflects that it would in effect work toward the detriment of women. If the law is to be reformed substantially, having unequal ages for men and women would only add to the already existing complications.
Conclusion
In the Indian society, sexual initiation for women is synonymous with marriage as a vast majority of them experience their first sexual intercourse after marriage.[21] The National Behavioral Surveillance Survey (BSS) of 2006 depicted that 50% of both male and female youth in India already had sex before the age of 18 years and for women it was almost exclusively within marriage.[22] Therefore, in light of the social expectation that sexual relations should only take place within marriage, this becomes an important consideration with respect to the proposed age of 21 years. Another thing that this debate appears to reflect is that even though the age of consent and age of marriage are issues that affect women the most, but they are hardly given an opportunity to contribute to the discussion. Instead, what comes out of it is that it becomes a matter of social concern which ends up perpetuating state paternalism without incorporating the voices of women. In a country where women’s sexuality is associated with the honor of her family and community, this in fact seems to be a dangerous proposal as according to it, a marriage before the proposed age of 21 years would be considered ‘void’ and a woman who chooses to engage in pre-marital sex would practically have no social protection or rights of reparation as she has not been married.
The author, Sanya Sethi, is currently a law student at the O.P. Jindal Global University, Sonipat, Haryana.
[1] (1885) 9 ILR Bom.
[2] Abhijit Das, Does India Need a New Law that Revises the Age at which Women are Married?, The Wire, available at https://thewire.in/women/india-new-law-age-at-marriage-women, last seen on 10/12/2020.
[3] Sonal Desai and Lester Andrist, Gender Scripts and Age at Marriage in India, 47(3) Springer 667, 671 (2010), https://www.jstor.org/stable/40800836, last seen on 02/02/2021.
[4] Partha Chatterjee, Colonialism, Nationalism and Colonialized Women: The Contest in India, 16(4) American Ethnologist 622, 624 (1989), http://www.jstor.org/stable/645113, last seen on 31/12/2020.
[5] Flavia Agnes, Controversy Over Age of Consent, 48(29) Economic and Political Weekly 10,12 (2013), https://www.jstor.org/stable/23528498, last seen on 15/12/2020.
[6] Pallavi Gupta, Child Marriages and the Law, Contemporary Concerns, 47(43) Economic and Political Weekly 49,50 (2012), https://www.jstor.org/stable/41720300, last seen on 20/12/2020.
[7] ibid.
[8] Jaya Sagade, Child Marriages in India 98 (Oxford University Press, 2nd ed., 2005).
[9] Focus Should be on Root Causes of Child Marriages: Activists, The Wire, available at https://thewire.in/women/marriage-age-women-18-21-children, last seen on 23/12/2020.
[10] Vaishna Roy, How Young is too Young for Consensual Sex?, The Hindu, available at How young is too young for consensual sex? – The Hindu, last seen on 19/02/21.
[11] Gupta (n 6) 54.
[12] Ministry of Women and Child Development, available at https://pib.gov.in/PressReleasePage.aspx?PRID=1629832.
[13] Jagriti Chandra, Should the Age of Marriage for Women be Raised to 21?, The Hindu, available at https://www.thehindu.com/opinion/op-ed/should-the-age-of-marriage-for-women-be-raised-to-21/article32517084.ece, last seen on 25/12/2020.
[14] ibid.
[15] ibid (n 9).
[16] ibid.
[17] Jagriti Chandra, Activists Against Raising Age of Marriage for Women, The Hindu, available at https://www.thehindu.com/news/national/activists-against-raising-age-of-marriage-for-women/article32435181.ece, last seen on 31/12/2020.
[18] ibid (n 13).
[19] (2018) Cri L.J. 3541.
[20] (2018) SC 1676.
[21] K.G. Santhya, Timing of First Sex Before Marriage and its Correlates: Evidence from India, 13(3) Culture, Health and Sexuality 327, 331 (2011), available at https://www.tandfonline.com/doi/abs/10.1080/13691058.2010.534819, last seen on 1/12/2020.
[22] Das (n 2).
The Journal of Indian Law and Society 