Policy Analysis

Critique on the Prohibition of Child Marriage (Amendment) Bill, 2021

Author:  Aashay Sundaram, a student at Gautam Buddha University

Introduction

The Parliament of India enacted a law called the Prohibition Of Child Marriage Act 2006 in order to fill out the social evil of society i.e., Child Marriage.  It also provides a safeguard mechanism to the victim by giving a right to file an F.I.R against the accused. In India, child marriage is considered to be a criminal offense and it is subjected to rigorous punishment. Section 2 of the act states that a male who is below 21 is considered to be a child and a female who is below 18 is considered to be a female child. This provision indirectly clarifies the age of marriage. The act also gives a right to a female child till the age of 20, to declare her marriage null and void by filing a petition in District Court if she was married before the legal age.

In 2021, a bill was brought in the Lok Sabha to amend the provision of the act. The objective of  The Prohibition of Child Marriage (Amendment) Bill, 2021 is to raise the legal age of women so as to put a full embargo on child marriage and to prevent the female child from cruelty.

It’s very fundamental and paramount to catalog that in India there is a vast amount of plurality on the basis of caste, creed, religion, beliefs, etc. Every religion has its own customs, culture, festivals, rules, and regulations to manage things. This is what we call Personal laws. Marriage, divorce, and inheritance all these things constitute a part of personal law.

Every religion has its own way and manner of regulating religious and matrimonial affairs. It’s the personal law that describes the procedure, age of marriage, and other related things.

This bill contains the provision to override the laws and regulations, which are personal to each religion so as to bring uniformity in the age criteria of marriage.

Historical Background

In Indian society, the problem of child marriage exist since time immemorial. Not only in Hinduism or Islam, but this evil also prevails in all religions, castes, and communities. During the colonial period, Britishers made Child Marriage Restraint Act 1929 in order to regulate and barricade this practice. Under this act, they fixed the age of girls for marriage at 16 and for boys at 18.

Subsequently, this act was amended in 1978 and as per the new amended act, the age of girls for marriage was raised from 16 to 18 and for boys from 18 to 21. Afterward, completely a new act was made in 2006 in order to eradicate this disease from society, and in that act, the age of girls was fixed at 18 and for boys, it was 21. At present, we are regulated by this act only. In 1929, a dedicated statute was made for the prevention of this ill practice but it’s been about 100 years, and we are still making and bringing changes to the statute. We are unable to get completely rid of this practice.

Analysis and Constitutional Parameter

The Prohibition of Child Marriage (Amendment) Bill, 2021 substantially focus on gender and religious goal. It’s an attempt of the Hon’ble Indian Government to unify the personal laws and make a common age criterion for marriage.

Every religious community has different personal laws for marriage. Like Indian Christian Marriage Act 1872, Sharia Act 1937, etc. But for Hindus, Sikhs, Jain & Buddhists there is a common and same personal law that governs marriage and the things related to it. In each law, there is different age given for boy and girl for marriage. For Hindus and other common believers, the average age for marriage is 18.5 years for a girl. Similarly in Christianity, the average age for marriage is 19.5 years for a girl.

So, overriding all, the (supra) bill mandates the age of 21 years for boys and girls both for marriage.

Presiding this, on the positive side, this bill is in consonance with Article 14 and Article 15 of the Indian Constitution. Article 14 talks about the right to equality and Article 15 negative discrimination on the basis of sex, so equalizing the age of marriage and giving both genders a choice of repudiating the marriage, it occurred during childhood, is completely qualifying the spirit of the Indian Constitution.

Similarly, if this bill will become an act, then one of the goals of the United Nations Sustainable Goal 2030 and the Convention on Elimination of all forms of discrimination against women will also get fulfilled. These things will convey and communicate a good impression of India on the International Platform.

Pros-

First, if one will see from the legal aspect, the difference in marriage age was discrimination on the Basis of Sex. Rationally, the previous provisions were arbitrary and any law which is not fair and reasonable instead, it is arbitrary is against Article 14 & Article 19 of the Indian Constitution.

The apex court of India in Independent Thought v. Union of India 2017 held that the laws or statutes like the Prohibition of Child Marriage Act are completely secular acts. As per the Court, women of each and every religion should get equal rights in respect of marriage.

Second, the dignity of Indian women was also compromised due to early marriage. Here, it is important to highlight that Article 21 of the Indian Constitution talks about the Right to Life and the Right to life means the right to live a dignified life. Early marriages also cause early pregnancies and as per the report, in early pregnancies the chance of miscarriage increases by 10%. Due to the early pregnancies, the Infant mortality rate (IFR) and Maternal Mortality Rate (MMR ) were found to be higher. The nutrition level in women was also low. So, under the new provision, there are some scopes to curb these things.

Third, as per 2017-18 NSSO data, there were around 13.2% of women who left their School and Higher education to get married. This thing causes major dependence of women on men or their husbands. But now, as the age is raised up to 21 years, women will have a better opportunity to get higher education, skills, psychological maturity, and better employment. This thing will reduce their dependence on male members. In urban society, one can find the trend where women and men both are reluctant toward marriage at an early age. Why? Because of education, literacy, and better opportunities. So, education plays a vital role in all such things.

Forth, The importance of education over the prevention of this ill disease is very broad. Due to the marriage age of 21, the female will get much time to secure a good degree and a job. This will reduce dependence on males. This thing will leave a positive remark on the Sex Ratio.

When a woman gets married at 18, suppose, then she directly becomes dependent on male members. Men became very much selective towards new-born; they prefer boys rather than girls. These things bring selective abortion and women become helpless towards it as she is also dependent on their husband. So, if women will have a good job and education then the attitude of males will change and women will also have a right to do whatever they want.

Fifth, This new amendment bill gives a right to males and females to repudiate their marriage, if it occurred during their child age. After attaining the legal age, i.e., in this case, 21, one can file a petition in District Court so as to declare the marriage null and void.

Cons-

First, It’s been found that the age of marriage has no relation to the prohibition of child marriage. Since 1929, there has been a very clear law and an act to stop this evil practice, but till now there is no full control over it. As per the UNICEF report, every year in India there occurs 15 Lakhs of Child marriages. The National Family Health Survey 2019-20 says that in India, 23% of marriages are child marriages of total marriages.

Second, as per a trend, people do child marriages who are marginalized like SC or ST and live in marginal or backward areas. The only way through which child marriages can be stopped in this area and in rural areas is through Poverty alleviation programs and Education. In India, as per a study, the Right to education should be given to a person who is in the 3-5 age group as well as in the 15-18 age group.

Third, there is no report or data or any credible research which shows a connection between Infant Mortality Rate (IFR), Maternal Mortality Rate (MMR), and Child Marriage. The report of NSSO 2018 shows that in Uttar Pradesh on average there is a total of 15% of child marriage, in Bihar, there is 40% and in West Bengal, there is 41% of child marriage. In these states, the IFR & MMR was found to be much better than in the rest of the states.

Forth, this bill will override the personal laws and laws of minorities as well. This thing will somehow undermine the rights of Minorities in a secular state.

Fifth, Indian society is patriarchal, where daughters are seen as a liability and the parents want to get rid of this liability as soon as possible. In a rural area, it’s found that when a girl becomes a major and attains the age of 16-17, the parents start looking for a groom. So, it’s a simple logic that in a country where parents can’t even wait till the age of 18 then how cum they will wait for 21?

In all these cases, the author thinks that an awareness program, campaign, education, poverty alleviation program & employment opportunities will play a big role in solving these defects.

Sixth, the prohibition of marriage on the basis of age, will bring a lot of causes related to illegal marriage.

Seventh, this bill also lays down a provision for annulment of child marriage after attaining the age of 21. It also states that the person concerned about child marriage will get criminal punishment. These things will leave a social backlash and a pang of guilt in the mind (him or her) of getting their parents arrested.

Conclusion

There is a need for clear debate over this topic because the positive and negative points of the amendment bill are more or less the same. It’s very important to note that the way this bill was brought into parliament without consulting the opposition and state holders is completely against the spirit of Democracy. There was a protest in Lok Sabha when this bill was getting introduced by Hon’ble Minister Smt Smriti Irani. It is also important to note that in India people get the right to enter into a contract at the age of 18, similarly for Driving, Voting, Pan Card, and bank accounts then how cum marriage at 18 is bad for society. The report of the 18th Law commission consultation paper shows that the legal age of marriage for males and females should be 18. The UNICEF reports also show the same thing. As per the ruling of the Supreme Court in the Hadiya case, the Right to Marriage is a part of Article 21. So, it’s very important to see how the government will prove the uniform age of marriage as a Just, fair, and reasonable restriction over the citizen under Article 21.


References

https://en.wikipedia.org/wiki/The_Prohibition_of_Child_Marriage_Act,_2006

https://www.myadvo.in/blog/right-to-marry-in-india-hadiya-case/

https://timesofindia.indiatimes.com/blogs/legally-speaking/prohibition-of-child-marriage-amendment-bill-2021-a-critique/

https://www.legalserviceindia.com/legal/article-6315-independent-thought-vs-union-of-india-2017-10-scc-800.html

https://www.iasgyan.in/rstv/prohibition-of-child-marriage-amendment-bill-2021

https://www.nextias.com/current-affairs/22-03-2022/prohibition-of-child-marriage-amendment-bill-2021

https://www.insightsonindia.com/2022/05/17/sansad-tv-bills-an-insight-prohibition-of-child-marriage-amendment-bill-2021/

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